exv10w22






Exhibit 10.22




GENERAL CONTINUING GUARANTY




          This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of September 25, 2009 is
executed and delivered by A.L. WIZARD, INC., a Delaware corporation (“Guarantor”), in favor
of WELLS FARGO FOOTHILL, LLC, a Delaware limited liability company, as agent for the Lender Group
and the Bank Product Providers (in such capacity, together with its successors and assigns, if any,
in such capacity, “Agent”), in light of the following:



          WHEREAS, RealPage, Inc., a Delaware corporation (“Borrower”), the below defined
Lenders, and Agent have entered into that certain Credit Agreement dated as of September 3, 2009
(as amended, restated, modified, renewed or extended from time to time, the “Credit
Agreement”);



          WHEREAS, Guarantor is a Subsidiary of Borrower and, as such, Guarantor will benefit by virtue
of the financial accommodations extended to Borrower by the Lender Group; and



          WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to extend the loans and other financial accommodations to Borrower pursuant to
the Credit Agreement, and in consideration thereof, and in consideration of any loans or other
financial accommodations heretofore or hereafter extended by the below defined Lender Group to
Borrower pursuant to the Loan Documents, Guarantor has agreed to guaranty the Guarantied
Obligations.



          NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees as follows:



     1. Definitions and Construction.



          (a) Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement. The following terms, as
used in this Guaranty, shall have the following meanings:



          “Agent” has the meaning set forth in the preamble to this Guaranty.



          “Borrower” has the meaning set forth in the recitals to this Guaranty.



          “Credit Agreement” has the meaning set forth in the recitals to this Guaranty.



          “Guarantied Obligations” means all of the Obligations.



          “Guarantor” has the meaning set forth in the preamble to this Guaranty.



          “Guaranty” has the meaning set forth in the preamble to this Guaranty.



          “Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.



          (b) Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the singular include the
plural, the part includes the whole, the terms “includes” and “including” are not limiting, and
the term “or” has, except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in
this Guaranty refer to this Guaranty as a whole and not to any particular provision of this Guaranty. Section, subsection, clause, schedule, and exhibit
references herein are to this Guaranty unless otherwise specified. Any reference in this Guaranty
to any agreement, instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and supplements,
thereto and thereof, as applicable (subject to any



 









 




restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements set forth herein). Neither this Guaranty nor any uncertainty or ambiguity herein shall
be construed or resolved against the Lender Group or Guarantor, whether under any rule of
construction or otherwise. On the contrary, this Guaranty has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of Guarantor and Agent. Any reference herein to the
satisfaction or payment in full of the Guarantied Obligations shall mean the payment in full in
cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all
Guarantied Obligations other than contingent indemnification Guarantied Obligations and other than
any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product
Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to
the provisions of the Credit Agreement and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement and any other Loan Document. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by the transmission of a Record
and any Record transmitted shall constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and headings are for convenience
of reference only and shall not affect the construction of this Guaranty.




     2. Guarantied Obligations. Guarantor hereby irrevocably and
unconditionally guaranties, jointly and severally with any other guarantor of the Guarantied
Obligations, to Agent, for the benefit of the Lender Group and the Bank Product Providers, as and
for its own debt, until the final and indefeasible payment in full thereof, in cash, has been made,
(a) the due and punctual payment of the Guarantied Obligations, when and as the same shall become
due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty set forth herein
shall be a guaranty of payment and not a guaranty of collection; and (b) the punctual and faithful
performance, keeping, observance, and fulfillment by Borrower of all of the agreements, conditions,
covenants, and obligations of Borrower contained in the Credit Agreement and under each of the
other Loan Documents.



     3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending, increasing, modifying,
releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or
other terms and conditions thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent
permitted by law, Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied
Obligations. If such a revocation is effective notwithstanding the foregoing waiver, Guarantor
acknowledges and agrees that (a) no such revocation shall be effective until written notice thereof
has been received by Agent, (b) no such revocation shall apply to any Guarantied Obligations in
existence on the date of receipt by Agent of such written notice (including any subsequent
continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or created pursuant to a legally
binding commitment of the Lender Group in existence on the date of such revocation, (d) no payment
by Guarantor, Borrower, or from any other source, prior to the date of Agent’s receipt of written
notice of such revocation shall reduce the maximum obligation of Guarantor hereunder, and (e) any
payment by Borrower or from any source other than Guarantor subsequent to the date of such
revocation shall first be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so
applied shall not reduce the maximum obligation of Guarantor hereunder.



     4. Performance Under this Guaranty. In the event that Borrower fails to
make any payment of any Guarantied Obligations, on or prior to the due date thereof, or if Borrower
shall fail to perform, keep, observe, or fulfill any other obligation referred to in clause (b) of Section
2 of this Guaranty in the manner provided in the Credit Agreement or any other Loan Document,
Guarantor immediately upon demand shall cause, as applicable, such payment in respect of the
Guarantied Obligations to be made or such obligation to be performed, kept, observed, or fulfilled.



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     5. Primary Obligations. This Guaranty is a primary and original
obligation of Guarantor, is not merely the creation of a surety relationship, and is an absolute,
unconditional, and continuing guaranty of payment and performance which shall remain in full force
and effect without respect to future changes in conditions. Guarantor hereby agrees that it is
directly, jointly and severally with any other guarantor of the Guarantied Obligations, liable to
Agent, for the benefit of the Lender Group and the Bank Product Providers, that the obligations of
Guarantor hereunder are independent of the obligations of Borrower or any other guarantor, and that
a separate action may be brought against Guarantor, whether such action is brought against Borrower
or any other guarantor or whether Borrower or any other guarantor is joined in such action.
Guarantor hereby agrees that its liability hereunder shall be immediate and shall not be contingent
upon the exercise or enforcement by any member of the Lender Group or any Bank Product Provider of
whatever remedies they may have against Borrower or any other guarantor, or the enforcement of any
lien or realization upon any security by any member of the Lender Group or any Bank Product
Provider. Guarantor hereby agrees that any release which may be given by Agent to Borrower or any
other guarantor, or with respect to any property or asset subject to a Lien, shall not release
Guarantor. Guarantor consents and agrees that no member of the Lender Group nor any Bank Product
Provider shall be under any obligation to marshal any property or assets of Borrower or any other
guarantor in favor of Guarantor, or against or in payment of any or all of the Guarantied
Obligations.



     6. Waivers.



          (a) To the fullest extent permitted by applicable law, Guarantor hereby waives:
(i) notice of acceptance hereof; (ii) notice of any loans or other financial accommodations made or
extended under the Credit Agreement, or the creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations, subject, however, to Guarantor’s right to
make inquiry of Agent to ascertain the amount of the Guarantied Obligations at any reasonable time;
(iv) notice of any adverse change in the financial condition of Borrower or of any other fact that
might increase Guarantor’s risk hereunder; (v) notice of presentment for payment, demand, protest,
and notice thereof as to any instrument among the Loan Documents; (vi) notice of any Default or
Event of Default under any of the Loan Documents; and (vii) all other notices (except if such
notice is specifically required to be given to Guarantor under this Guaranty or any other Loan
Documents to which Guarantor is a party) and demands to which Guarantor might otherwise be
entitled.



          (b) To the fullest extent permitted by applicable law, Guarantor hereby waives the
right by statute or otherwise to require any member of the Lender Group or any Bank Product
Provider, to institute suit against Borrower or any other guarantor or to exhaust any rights and
remedies which any member of the Lender Group or any Bank Product Provider, has or may have against
Borrower or any other guarantor. In this regard, Guarantor agrees that it is bound to the payment
of each and all Guarantied Obligations, whether now existing or hereafter arising, as fully as if
the Guarantied Obligations were directly owing to Agent, the Lender Group, or the Bank Product
Providers, as applicable, by Guarantor. Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that the Guarantied Obligations shall have
been fully and finally performed and indefeasibly paid in full in cash, to the extent of any such
payment) of Borrower or by reason of the cessation from any cause whatsoever of the liability of
Borrower in respect thereof.



          (c) To the fullest extent permitted by applicable law, Guarantor hereby waives:
(i) any right to assert against any member of the Lender Group or any Bank Product Provider, any
defense (legal or equitable), set-off, counterclaim, or claim which Guarantor may now or at any
time hereafter have against Borrower or any other party liable to any member of the Lender Group or
any Bank Product Provider; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or
indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability
of the Guarantied Obligations or any security therefor; (iii) any right or defense arising by
reason of any claim or defense based upon an election of remedies by any member of the Lender Group
or any Bank Product Provider including any defense based upon an impairment or elimination of
Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of



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Guarantor against Borrower or other guarantors or sureties; (iv) the benefit of any statute of limitations affecting
Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay
the operation of any statute of limitations applicable to the Guarantied Obligations shall
similarly operate to defer or delay the operation of such statute of limitations applicable to
Guarantor’s liability hereunder.




          (d) Until the Guarantied Obligations have been paid in full in cash, (i) Guarantor
hereby postpones and agrees not to exercise any right of subrogation Guarantor has or may have as
against Borrower with respect to the Guarantied Obligations; (ii) Guarantor hereby postpones and
agrees not to exercise any right to proceed against Borrower or any other Person now or hereafter
liable on account of the Obligations for contribution, indemnity, reimbursement, or any other
similar rights (irrespective of whether direct or indirect, liquidated or contingent); and
(iii) Guarantor hereby postpones and agrees not to exercise any right it may have to proceed or to
seek recourse against or with respect to any property or asset of Borrower or any other Person now
or hereafter liable on account of the Obligations. Notwithstanding anything to the contrary
contained in this Guaranty, Guarantor shall not exercise any rights of subrogation, contribution,
indemnity, reimbursement or other similar rights against, and shall not proceed or seek recourse
against or with respect to any property or asset of, any other guarantor (including after payment
in full of the Guaranteed Obligations) if all or any portion of the Obligations have been satisfied
in connection with an exercise of remedies in respect of all of the pledged Stock of such other
guarantor whether pursuant to the Security Agreement or otherwise.



          (e) If any of the Guarantied Obligations or the obligations of Guarantor under
this Guaranty at any time are secured by a mortgage or deed of trust upon real property, any member
of the Lender Group or any Bank Product Provider may elect, in its sole discretion, upon a default
with respect to the Guarantied Obligations or the obligations of Guarantor under this Guaranty, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any manner permitted by
law, before or after enforcing this Guaranty, without diminishing or affecting the liability of
Guarantor hereunder. Guarantor understands that (a) by virtue of the operation of antideficiency
law applicable to nonjudicial foreclosures, an election by any member of the Lender Group or any
Bank Product Provider to nonjudicially foreclose on such a mortgage or deed of trust probably would
have the effect of impairing or destroying rights of subrogation, reimbursement, contribution, or
indemnity of Guarantor against Borrower or other guarantors or sureties, and (b) absent the waiver
given by Guarantor herein, such an election would estop any member of the Lender Group and the Bank
Product Providers from enforcing this Guaranty against Guarantor. Understanding the foregoing, and
understanding that Guarantor is hereby relinquishing a defense to the enforceability of this
Guaranty, Guarantor hereby waives any right to assert against any member of the Lender Group or any
Bank Product Provider any defense to the enforcement of this Guaranty, whether denominated
“estoppel” or otherwise, based on or arising from an election by any member of the Lender Group or
any Bank Product Provider to nonjudicially foreclose on any such mortgage or deed of trust or as a
result of any other exercise of remedies, whether under a mortgage or deed of trust or under any
personal property security agreement. Guarantor understands that the effect of the foregoing
waiver may be that Guarantor may have liability hereunder for amounts with respect to which
Guarantor may be left without rights of subrogation, reimbursement, contribution, or indemnity
against Borrower or other guarantors or sureties. Guarantor also agrees that the “fair market
value” provisions of Section 580a of the California Code of Civil Procedure (and any similar law of
New York or any other applicable jurisdiction) shall have no applicability with respect to the
determination of Guarantor’s liability under this Guaranty.



          (f) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have as a
result of all or part of the Guarantied Obligations being secured by real property. This means,
among other things:



                    (i) Any member of the Lender Group or any Bank Product Provider may collect from
Guarantor without first foreclosing on any real or personal property collateral that may be pledged
by Guarantor, Borrower, or any other guarantor.



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               (ii) If any member of the Lender Group or any Bank Product Provider forecloses on
any real property collateral that may be pledged by Guarantor, Borrower or any other guarantor:




	 	(1)	 	The amount of the Guarantied Obligations or any obligations
of any guarantor in respect thereof 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.
	 
	 	(2)	 	Agent may collect from Guarantor even if any member of the
Lender Group or any Bank Product Provider, by foreclosing on the real
property collateral, has destroyed any right Guarantor may have to
collect from Borrower or any other guarantor.





          This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have
if all or part of the Guarantied Obligations are secured by real property. These rights and
defenses are based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure
and any similar law of New York or any other jurisdiction.



          (g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET
FORTH IN THIS GUARANTY, GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY
LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF
CALIFORNIA CIVIL CODE §§ 2787, 2799, 2808, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2847, 2848,
AND 2855, CALIFORNIA CODE OF CIVIL PROCEDURE §§ 580A, 580B, 580C, 580D, AND 726, AND CHAPTER 2 OF
TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.



          (h) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET
FORTH IN THIS GUARANTY, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF
REMEDIES BY ANY MEMBER OF THE LENDER GROUP OR ANY BANK PRODUCT PROVIDER, EVEN THOUGH SUCH ELECTION
OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED
OBLIGATIONS, HAS DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST BORROWER BY
THE OPERATION OF APPLICABLE LAW INCLUDING §580D OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR ANY
SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.



          (i) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, Guarantor hereby also agrees to the following waivers:



               (i) Agent’s right to enforce this Guaranty is absolute and is not contingent upon
the genuineness, validity or enforceability of the Guarantied Obligations or any of the Loan
Documents. Guarantor waives all benefits and defenses it may have under California Civil Code
Section 2810 or any similar laws in any other applicable jurisdiction and agrees that Agent’s
rights under this Guaranty shall be enforceable even if Borrower had no liability at the time of
execution of the Loan Documents or the Guarantied Obligations are unenforceable in whole or in
part, or Borrower ceases to be liable with respect to all or any portion of the Guarantied
Obligations.



               (ii) Guarantor waives all benefits and defenses it may have under California Civil
Code Section 2809 or any similar laws in any other applicable jurisdiction with respect to its
obligations under this Guaranty and agrees that Agent’s rights under the Loan Documents will remain
enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome than
that for which Borrower is



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responsible. The enforceability of this Guaranty against Guarantor
shall continue until all sums due under the Loan Documents have been paid in full and the
commitments of the Lender Group to extend financial accommodations to Borrower have been terminated
and shall not be limited or affected in any way by any impairment or any diminution or loss of
value of any security or collateral for Borrower’s obligations under the Loan Documents, from
whatever cause, the failure of any security interest in any such security or collateral or any
disability or other defense of Borrower, any other guarantor of Borrower’s obligations under any
other Loan Document, any pledgor of collateral for any person’s obligations to Agent or any other
person in connection with the Loan Documents.




               (iii) Guarantor waives all benefits and defenses it may have under California
Civil Code §§ 2845, 2849 and 2850 or any similar laws of any other applicable jurisdiction with
respect to its obligations under this Guaranty, including the right to require Agent to (A) proceed
against Borrower, any guarantor of Borrower’s obligations under any Loan Document, any other
pledgor of collateral for any person’s obligations to Agent or any other person in connection with
the Guarantied Obligations, (B) proceed against or exhaust any other security or collateral Agent
may hold, or (C) pursue any other right or remedy for Guarantor’s benefit, and agrees that Agent
may exercise its right under this Guaranty without taking any action against Borrower, any other
guarantor of Borrower’s obligations under the Loan Documents, any pledgor of collateral for any
person’s obligations to Agent or any other person in connection with the Guarantied Obligations,
and without proceeding against or exhausting any security or collateral Agent holds.



               (iv) The paragraphs in this Section 6 which refer to certain sections of
the California Civil Code are included in this Guaranty solely out of an abundance of caution and
shall not be construed to mean that any of the above-referenced provisions of California law are in
any way necessarily applicable to this Guaranty.



     7. Releases. Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing the obligations of Guarantor hereunder, any member of
the Lender Group or any Bank Product Provider may, by action or inaction, compromise or settle,
shorten or extend the Maturity Date or any other period of duration or the time for the payment of
the Obligations, or discharge the performance of the Obligations, or may refuse to enforce the
Obligations, or otherwise elect not to enforce the Obligations, or may, by action or inaction,
release all or any one or more parties to, any one or more of the terms and provisions of the
Credit Agreement or any of the other Loan Documents in accordance with the terms thereof or may
grant other indulgences to Borrower or any other guarantor in respect thereof, or may amend or
modify in any manner and at any time (or from time to time) any one or more of the Obligations, the
Credit Agreement or any other Loan Document (including any increase or decrease in the principal
amount of any Obligations or the interest, fees or other amounts that may accrue from time to time
in respect thereof), or may, by action or inaction, release or substitute the Borrower or any
guarantor, if any, of the Guarantied Obligations, or may enforce, exchange, release, or waive, by
action or inaction, any security for the Guarantied Obligations or any other guaranty of the
Guarantied Obligations, or any portion thereof.



     8. No Election. The Lender Group and the Bank Product Providers shall
have the right to seek recourse against Guarantor to the fullest extent provided for herein and no
election by any member of the Lender Group or any Bank Product Provider to proceed in one form of
action or proceeding, or against any party, or on any obligation, shall constitute a waiver of the
Lender Group’s or any Bank Product Provider’s right to proceed in any other form of action or
proceeding or against other parties unless Agent, on behalf of the Lender Group or the Bank Product
Providers, has expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by the Lender Group or the Bank Product
Providers under any document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent that the Lender Group
and the Bank Product Providers finally and unconditionally shall have realized indefeasible payment in
full of the Guarantied Obligations by such action or proceeding.



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     9. Revival and Reinstatement. If the incurrence or payment of the
Guarantied Obligations by Guarantor or the obligations of Guarantor under this Guaranty or the
transfer by Guarantor to Agent of any property of Guarantor should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to creditors’ rights,
including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or
other voidable or recoverable payments of money or transfers of property (collectively, a
“Voidable Transfer”), and if the Lender Group is required to repay or restore, in whole or
in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Lender Group is required or
elects to repay or restore, and as to all reasonable costs, expenses, and attorneys fees of the
Lender Group related thereto, the liability of Guarantor automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had never been made.



     10. Financial Condition of Borrower. Guarantor represents and warrants to
the Lender Group and the Bank Product Providers that it is currently informed of the financial
condition of Borrower and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Guarantied Obligations. Guarantor further represents
and warrants to the Lender Group and the Bank Product Providers that it has read and understands
the terms and conditions of the Credit Agreement and each other Loan Document. Guarantor hereby
covenants that it will continue to keep itself informed of Borrower’s financial condition, the
financial condition of other guarantors, if any, and of all other circumstances which bear upon the
risk of nonpayment or nonperformance of the Guarantied Obligations.



     11. Payments; Application. All payments to be made hereunder by Guarantor
shall be made in Dollars, in immediately available funds, and without deduction (whether for taxes
or otherwise) or offset and shall be applied to the Guarantied Obligations in accordance with the
terms of the Credit Agreement.



     12. Attorneys Fees and Costs. Guarantor agrees to pay, on demand, all
attorneys fees and all other costs and expenses which may be incurred by Agent or the Lender Group
in connection with the enforcement of this Guaranty or in any way arising out of, or consequential
to, the protection, assertion, or enforcement of the Guarantied Obligations (or any security
therefor), irrespective of whether suit is brought.



     13. Notices. All notices and other communications hereunder to Agent
shall be in writing and shall be mailed, sent, or delivered in accordance with Section 11
of the Credit Agreement. All notices and other communications hereunder to Guarantor shall be in
writing and shall be mailed, sent, or delivered in care of Borrower in accordance with Section
11 of the Credit Agreement.



     14. Cumulative Remedies. No remedy under this Guaranty, under the Credit
Agreement, or any other Loan Document is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every other remedy given under this
Guaranty, under the Credit Agreement, or any other Loan Document, and those provided by law. No
delay or omission by the Lender Group or Agent on behalf thereof to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No failure on the
part of the Lender Group or Agent on behalf thereof to exercise, and no delay in exercising, any
right under this Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise thereof or the
exercise of any other right.



     15. Severability of Provisions. Each provision of this Guaranty shall be
severable from every other provision of this Guaranty for the purpose of determining the legal
enforceability of any specific provision.



     16. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between parties pertaining to the subject matter contained herein. This Guaranty may not
be altered, amended, or modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means



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of a writing executed by Guarantor and Agent, on behalf of the Lender
Group. Any such alteration, amendment, modification, waiver, or consent shall be effective only to
the extent specified therein and for the specific purpose for which given. No course of dealing
and no delay or waiver of any right or default under this Guaranty shall be deemed a waiver of any
other, similar or dissimilar, right or default or otherwise prejudice the rights and remedies
hereunder.




     17. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of the successors and assigns of the
Lender Group and the Bank Product Providers; provided, however, Guarantor shall not
assign this Guaranty or delegate any of its duties hereunder without Agent’s prior written consent
and any assignment not consented to by Agent shall be absolutely null and void. In the event of
any assignment, participation, or other transfer of rights by the Lender Group or the Bank Product
Providers that is permitted under the Credit Agreement, the rights and benefits herein conferred
upon the Lender Group and the Bank Product Providers shall automatically extend to and be vested in
such assignee or other transferee.



     18. No Third Party Beneficiary. This Guaranty is solely for the benefit
of each member of the Lender Group, each Bank Product Provider, and each of their successors and
assigns and may not be relied on by any other Person.



     19. CHOICE OF LAW AND VENUE.



          THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.



          THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE
OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE
WITH THIS SECTION 19.



     20. JURY TRIAL WAIVER.



          EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS SECTION MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.



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     21. REFERENCE PROVISION.



          In the event the Jury Trial Waiver set forth above is not enforceable, the parties
elect to proceed under this Judicial Reference Provision.



          21.1 Mechanics.



          (a) With the exception of the items specified in clause (b), below, any controversy, dispute
or claim (each, a “Claim”) between the parties arising out of or relating to this Guaranty
or any other document, instrument or agreement between the undersigned parties (collectively in
this Section, the “Lender Documents”), will be resolved by a reference proceeding in
California in accordance with the provisions of Sections 638 et seq. of the California Code of
Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive
remedy for the resolution of any Claim, including whether the Claim is subject to the reference
proceeding. Except as otherwise provided in the Lender Documents, venue for the reference
proceeding will be in the state or federal court in the county or district where the real property
involved in the action, if any, is located or in the state or federal court in the county or
district where venue is otherwise appropriate under applicable law (the “Court”).



          (b) The matters that shall not be subject to a reference are the following: (i) foreclosure of
any security interests in real or personal property, (ii) exercise of self-help remedies
(including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary,
provisional or ancillary remedies (including, without limitation, writs of attachment, writs of
possession, temporary restraining orders or preliminary injunctions). This reference provision does
not limit the right of any party to exercise or oppose any of the rights and remedies described in
clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items
described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not
waive the right of any party to a reference pursuant to this reference provision as provided
herein.



          (c) The referee shall be a retired judge or justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).



          (d) The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.



          (e) The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and all other
discovery shall be responded to within fifteen (15) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.



          21.2 Procedures. Except as expressly set forth herein, the referee shall determine
the manner in which the reference proceeding is conducted including the time and place of hearings,
the order of



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presentation of evidence, and all other questions that arise with respect to the
course of the reference proceeding. All proceedings and hearings conducted before the referee,
except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at
any hearing conducted before the referee, and the referee will be provided a courtesy copy of the
transcript. The party making such a request shall have the obligation to arrange for and pay the
court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties
will equally share the cost of the referee and the court reporter at trial.




          21.3 Application of Law. The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be applicable to the
reference proceeding. The referee shall be empowered to enter equitable as well as legal relief,
enter equitable orders that will be binding on the parties and rule on any motion which would be
authorized in a court proceeding, including without limitation motions for summary judgment or
summary adjudication. The referee shall issue a decision at the close of the reference proceeding
which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP
§ 644, such decision shall be entered by the Court as a judgment or an order in the same manner as
if the action had been tried by the Court and any such decision will be final, binding and
conclusive. The parties reserve the right to appeal from the final judgment or order or from any
appealable decision or order entered by the referee. The parties reserve the right to findings of
fact, conclusions of laws, a written statement of decision, and the right to move for a new trial
or a different judgment, which new trial, if granted, is also to be a reference proceeding under
this provision.



          21.4 Repeal. If the enabling legislation which provides for appointment of a referee
is repealed (and no successor statute is enacted), any dispute between the parties that would
otherwise be determined by reference procedure will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge or justice, in accordance with the California
Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with
respect to discovery set forth above shall apply to any such arbitration proceeding.



          21.5 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THIS GUARANTY OR THE OTHER LENDER DOCUMENTS.



     22. Counterparts; Telefacsimile Execution. This Guaranty may be executed
in any number of counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Guaranty. Delivery of an executed counterpart of
this Guaranty by telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this Guaranty but the failure
to deliver an original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Guaranty.



     23. Agreement to be Bound. Guarantor hereby agrees to be bound by each
and all of the terms and provisions of the Credit Agreement applicable to Guarantor. Without
limiting the generality of the foregoing, by its execution and delivery of this Guaranty, Guarantor
hereby: (a) makes to the Lender Group each of the representations and warranties set forth in the
Credit Agreement applicable to Guarantor fully as though Guarantor were a party thereto, and such
representations and warranties are incorporated herein by this reference, mutatis mutandis; and
(b) agrees and covenants (i) to do each of the things set forth in the Credit



10









 




Agreement that
Borrower agrees and covenants to cause Guarantor to do, and (ii) to not do each of the things set
forth in the Credit Agreement that Borrower agrees and covenants to cause Guarantor not to do, in
each case, fully as though Guarantor was a party thereto, and such agreements and covenants are
incorporated herein by this reference, mutatis mutandis.




[Signature page to follow]



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          IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date
first written above.



	 	 	 	 	 
	 	A.L. WIZARD, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Timothy J. Barker
 	 
	 	 	Name:  	Timothy J. Barker 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



Signature Page to Guaranty