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Exhibit 10.3
[LOGO]
CONTINUING GUARANTY
For value received and in consideration of the extension of credit by SANWA
BANK CALIFORNIA (the "Bank") to DOVE AUDIO, INC. (the "Debtor") or the benefits
to the undersigned derived therefrom, the undersigned (the "Guarantor"),
guarantees and promises to pay to the Bank any and all Indebtedness (as defined
below) and agrees as follows:
1. INDEBTEDNESS. The term "Indebtedness" is used herein in its
most comprehensive sense and includes any and all advances, debts, obligations,
guaranties and liabilities of the Debtor heretofore, now, or hereafter made,
incurred or created, whether voluntary or involuntary and however arising,
whether direct or acquired by the Bank by assignment or succession, whether due
or not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether the Debtor may be liable individually or jointly with
others, or whether recovery upon any Indebtedness may be or hereafter becomes
barred by any statute of limitations or whether any Indebtedness may be or
hereafter becomes otherwise unenforceable.
2. GUARANTY. The Guarantor unconditionally agrees to pay to the
Bank or its order, on demand, an amount equal to the amount of the Indebtedness
or otherwise perform any obligation of the Debtor undertaken pursuant to any
Indebtedness. In addition to any maximum principal liability hereunder, the
Guarantor agrees to (i) bear the expenses enumerated hereunder in the paragraph
herein entitled "Attorneys' Fees" and (ii) pay interest on the Indebtedness at
the rate(s) applicable thereto. Notwithstanding the foregoing, the Bank may
allow the Indebtedness to exceed the Guarantor's liability hereunder. Any
payment by the Guarantor shall not reduce the maximum principal obligation of
the Guarantor hereunder unless written notice to that effect is actually
received by the Bank at or prior to the time of such payment. Any payment by
the Debtor or any other person shall not reduce the Guarantor's maximum
principal liability hereunder.
3. RIGHT TO AMEND OR MODIFY INDEBTEDNESS. The Guarantor
authorizes the Bank, at its sole discretion, with or without notice and without
affecting the Guarantor's liability hereunder, from time to time to: (i) change
the time or manner of payment of any Indebtedness by renewal, extension,
modification, acceleration or otherwise; (ii) alter or change any provision of
any Indebtedness including, but not limited to, the rate of interest thereon,
and any document, instrument or agreement (other than this Guaranty)
evidencing, guaranteeing, securing or related to any Indebtedness; (iii)
release, discharge, exonerate, substitute or add one or more parties liable on
any Indebtedness or one or more endorsers, cosigners or guarantors for any
Indebtedness; (iv) obtain collateral for the payment of any Indebtedness or any
guaranty thereof; (v) release existing or after-acquired collateral on such
terms as the Bank, in its sole discretion, shall determine; (vi) apply any sums
received from the Debtor, any endorser, cosigner, other guarantor or other
person liable on any Indebtedness or from the sale or collection of collateral
or its proceeds to any indebtedness whatsoever owed or to be owed to the Bank
by the Debtor in any order or amount and regardless of whether or not such
indebtedness is guaranteed hereby, is secured by collateral or is due and
payable: and (vii) apply to any Indebtedness, in any order or amount,
regardless of whether such Indebtedness is secured by collateral or is due and
payable, any sums received from the Guarantor or from the sale of collateral in
which the Guarantor has granted the Bank a security interest.
4. WAIVERS. The Guarantor hereby unconditionally and irrevocably
acknowledges and agrees to the matters set forth below:
A. DEFICIENCY. In the event that any Indebtedness is now or
hereafter secured by a deed of trust, the Guarantor waives any defense
and all rights and benefits of those laws purporting to state that no
deficiency judgment may be recovered on certain real property purchase
money obligations (as presently contained in Section 580b of the
California Code of Civil Procedure and as it may be amended or
superseded in the future) and those laws purporting to state that no
deficiency judgment may be recovered after a trustee's sale under a
deed of trust (as presently contained in Section 580d of the
California Code of Civil Procedure and as it may be amended or
superseded in the future). THE GUARANTOR ACKNOWLEDGES THAT A
FORECLOSURE BY A TRUSTEE'S SALE UNDER A DEED OF TRUST MAY RESULT IN
THE DESTRUCTION OF THE GUARANTOR'S SUBROGATION RIGHTS THAT MAY
OTHERWISE EXIST AND THAT A DESTRUCTION OF THOSE RIGHTS MAY CREATE A
DEFENSE TO A DEFICIENCY JUDGEMENT. THE GUARANTOR HEREBY SPECIFICALLY
WAIVES ANY SUCH DEFENSE.
B. ELECTION OF REMEDIES. The Guarantor waives any defense based
upon the Guarantor's loss of a right against the Debtor arising from
the Bank's election of a remedy on any Indebtedness under bankruptcy
or other debtor relief laws or under any other laws, including, but
not limited to, those purporting to reduce the Bank's right against
the Guarantor in proportion to the principal obligation of any
Indebtedness (as presently contained in Section 2809 of the California
Civil Code and as it may be amended or superseded in the future).
Without limiting the generality of the foregoing, the Guarantor waives
all rights and defenses arising out of an election of remedies by the
Bank, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has
destroyed the Guarantor's rights of subrogation and reimbursement
against the Debtor by operation of Section 580d of the California Code
of Civil Procedure or otherwise.
C. STATUTE OF LIMITATIONS. The Guarantor waives the benefit of
the statute of limitations affecting the Guarantor's liability
hereunder or the enforcement hereof.
D. ACTION AGAINST THE DEBTOR AND COLLATERAL (AND OTHER REMEDIES).
The Guarantor waives all right to require the Bank to: (i) proceed
against the Debtor, any endorser, cosigner, other guarantor or other
person liable on any Indebtedness; (ii) join the Debtor or any
endorser, cosigner, other guarantor or other person liable on any
Indebtedness in any action or actions that may be brought and
prosecuted by the Bank solely and separately against the Guarantor on
any Indebtedness; (iii) proceed against any item or items of
collateral securing any Indebtedness or any guaranty thereof; or (iv)
pursue or refrain from pursuing any other remedy whatsoever in the
Bank's power.
E. DEBTOR'S DEFENSES. The Guarantor waives any defense arising
by reason of any disability or other defense of the Debtor, the
Debtor's successor or any endorser, cosigner, other guarantor or other
person liable on any Indebtedness. Until all Indebtedness has been
paid in full, even though it may be in excess of the liability
incurred hereby, the Guarantor shall not have any right of subrogation
and the Guarantor waives any benefit of and right to participate in
any collateral now or hereafter held by the Bank. The Guarantor
waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
notices of sale of any collateral securing any Indebtedness or any
guaranty thereof, and notice of the existence, creation or incurring
of new or additional Indebtedness.
F. DEBTOR'S FINANCIAL CONDITION. The Guarantor hereby
recognizes, acknowledges and agrees that advances may be made in the
future from time to time with respect to any Indebtedness without
authorization from or notice to die Guarantor even though the
financial condition of the Debtor, any endorser, cosigner, other
guarantor or other person liable on any Indebtedness may have
deteriorated since the date of this Guaranty. The Guarantor waives
all right to require the Bank, to disclose any information with
respect to: (i) any Indebtedness now existing or hereafter incurred;
(ii) the present or future financial conditions credit or character of
the Debtor, any endorser, cosigner, other guarantor or other person
liable on any Indebtedness; (iii) any present or future
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collateral securing any Indebtedness or any guaranty thereof; or (iv)
any present or future action or inaction on the part of the Bank, the
Debtor or any endorser, cosigner, other guarantor or other person
liable on any Indebtedness. The Guarantor hereby assumes the
responsibility for being informed of the financial condition, credit
and character of the Debtor and of all circumstances bearing upon the
risk of non-payment of any Indebtedness which diligent inquiry would
reveal.
5. RIGHT OF SET-OFF; GRANT OF SECURITY INTEREST. In addition to all
liens upon and rights of set-off against any monies, securities or other
property of the Guarantor given to the Bank by law, the Bank shall have a
security interest in and a right to set off against all monies, securities and
other property of the Guarantor now or hereafter in the possession of or on
deposit with the Bank, the Bank's agents or any one or more of them, whether
held in general or special account or deposit or for safekeeping or otherwise;
and each such security interest and right of set-off may be exercised without
demand upon or notice to the Guarantor. No action or inaction by the Bank with
respect to any security interest or right of set-off shall be deemed a waiver
thereof and every right of set-off and security interest shall continue in full
force and effect until specifically released by the Bank in writing. The
security interest created hereby shall secure all of the Guarantor's
obligations under this Guaranty.
6. RIGHT OF FORECLOSURE. The Bank may foreclose, either by judicial
foreclosure or by exercise of power of sale, any deed of trust securing any
Indebtedness even though such foreclosure may destroy or diminish the
Guarantor's rights against the Debtor. The Guarantor shall be liable to the
Bank for any part of any Indebtedness remaining unpaid after any such
foreclosure whether or not such foreclosure was for fair market value.
7. SUBORDINATION. Any indebtedness of the Debtor or any endorser,
cosigner, other guarantor or other person liable on any Indebtedness now or
hereafter owed to the Guarantor is hereby subordinated to the Indebtedness.
Such indebtedness owed to the Guarantor shall, if the Bank so requests, be
collected, enforced and received by the Guarantor as trustee for the Bank and
be paid over to the Bank an account of the Indebtedness but without reducing or
affecting in any manner the liability of the Guarantor set forth herein.
Should the Guarantor fail to collect the proceeds of any such indebtedness owed
to it and pay the proceeds to the Bank, the Bank, as the Guarantor's
attorney-in-fact, may do such acts and sign such documents in the Guarantor's
name as the Bank considers necessary to effect such collection.
8. INVALID, FRAUDULENT OR PREFERENTIAL PAYMENTS. The Guarantor agrees
that, to the extent the Debtor or any endorser, cosigner, other guarantor or
other person liable on any Indebtedness makes a payment or payments to, or is
credited for any payment or payments made for or on behalf of the Debtor to the
Bank, which payment or payments, or any part thereof, is subsequently
invalidated, determined to be fraudulent or preferential, set aside or required
to be repaid to any trustee, receiver, assignee or any other party whether under
any bankruptcy, state or federal law or under any common law or equitable cause
or otherwise, then, to the extent thereof, the obligation or part thereof
intended to be satisfied thereby shall be revived, reinstated and continued in
full force and effect as if such payment or payments had not originally been
made or credited.
9. JOINT AND SEVERAL OBLIGATIONS; INDEPENDENT OBLIGATIONS. If more than
one Guarantor signs this Guaranty, the obligations hereunder are joint and
several. The Guarantor's obligations hereunder are independent of the
obligations of the Debtor or any endorser, cosigner, other guarantor or other
person liable on any Indebtedness and a separate action or actions may be
brought and prosecuted against the Guarantor on any Indebtedness.
10. FINANCIAL INFORMATION. The Guarantor hereby agrees to deliver or cause
to be delivered to the Bank:
A. OTHER INFORMATION. (i) Annual Statements. Not later than
March 31st of each year, a copy of the updated financial statement of
the Guarantor commencing March 31, 1997, which report shall be
prepared by the Guarantor; and (ii) Tax Returns. Not later than 30
days after filing but in no event later than October 15th of each
year, a copy of the Guarantor's federal income tax returns filed for
such year.
11. ACKNOWLEDGEMENT OF RECEIPT. Receipt of a true copy of this Guaranty
is hereby acknowledged by the Guarantor. The Guarantor understands and agrees
that this Guaranty shall not constitute a commitment of any nature whatsoever
by the Bank to renew or hereafter extend credit to the Debtor. The Guarantor
agrees that this Guaranty shall be effective with or without notice from the
Bank of the Bank's acceptance hereof.
12. CONTINUING GUARANTY. This Guaranty is a continuing guaranty.
Revocation shall be effective only upon written notice personally received by
an officer of the Bank at the originating office indicated below or actually
received at the originating office by United States mail postage prepaid.
Notice shall be effective at any office of the Bank should the originating
office no longer be in existence. Revocation shall be effective at the close
of the Bank's business day when such notice is actually received. Any
revocation shall be effective only as to the revoking party and shall not
affect that party's obligation with respect to any Indebtedness existing before
such revocation is effective.
13. NON-RELIANCE. In executing this Guaranty, the undersigned is not
relying, and has not relied, upon any statement or representation made by the
Bank, or any employee, agent or representative of the Bank, with respect to the
status, financial condition or other matters related to the Debtor or the
relationship between the Debtor and the Bank.
14. MULTIPLE GUARANTIES. If the Guarantor has executed or does execute
more than one guaranty of any indebtedness of the Debtor to the Bank, the
limits of liability thereunder and hereunder shall be cumulative.
15. SEVERABILITY. Should any one or more provisions of this Guaranty be
determined to be illegal or unenforceable, all other provisions shall remain
effective.
16. CORPORATE OR PARTNERSHIP AUTHORITY. If the Debtor is a corporation or
partnership, the Bank need not inquire into the power of the Debtor or the
authority of its officers, directors, partners or agents acting or purporting
to act in its behalf and any credit granted in reliance upon the purported
exercise of such power or authority is guarantied hereunder.
17. SEPARATE PROPERTY. Any married person who signs this Guaranty
expressly agrees that recourse may be had against such person's separate
property for all obligations hereunder.
18. ASSIGNMENT. The Bank may, with or without notice, assign this
Guaranty in whole or in part. This Guaranty shall inure to the benefit of the
Bank, its successors and assigns, and shall bind the Guarantor and the
Guarantor's heirs, executors, administrators, successors and assigns.
19. WAIVER OF JURY. The Guarantor and the Bank hereby expressly and
voluntarily waive any and all rights, whether arising under the California
constitution, any rules of the California Code of Civil Procedure, common law
or otherwise, to demand a trial by jury in any action, matter, claim or cause
of action whatsoever arising out of or in any way related to this Guaranty or
any other agreement, document or transaction contemplated hereby.
20. DISPUTE RESOLUTION.
A. DISPUTES. It is understood and agreed that, upon the request
of any party to this Guaranty, any dispute, claim or controversy of
any kind, whether in contract or in tort, statutory or common law,
legal or equitable, now existing or hereinafter arising between the
parties in any way arising out of, pertaining to or in connection
with: (i) this Guaranty, or any related agreements, documents or
instruments, (ii) all past and present loans, credits, accounts,
deposit accounts (whether demand deposits or time deposits), safe
deposit boxes, safekeeping agreements, guarantees, letters of credit,
goods or services, or other transactions, contracts or agreements of
any kind, (iii) any incidents, omissions, acts, practices, or
occurrences causing injury to any party whereby another parry or its
agents, employees or representatives may be liable, in whole or in
part, or (iv) any aspect of the past or present relationships of the
parties, shall be resolved through a two-step dispute resolution
process administered by the Judicial Arbitration & Mediation Services,
Inc. ("JAMS") as follows:
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B. STEP I - MEDIATION. At the request of any party to the
dispute, claim or controversy, the matter shall be referred to the
nearest office of JAMS for mediation, which is an informal,
non-binding conference or conferences between the parties in which a
retired judge or justice from the JAMS panel will seek to guide the
parties to a resolution of the case.
C. STEP II - ARBITRATION (CONTRACTS NOT SECURED BY REAL
PROPERTY). Should any dispute, claim or controversy remain unresolved
at the conclusion of the Step I Mediation Phase, then (subject to the
restriction at the end of this subparagraph) all such remaining
matters shall be resolved by final and binding arbitration before a
different judicial panelist, unless the parties shall agree to have
the mediator panelist act as arbitrator. The hearing shall be
conducted at a location determined by the arbitrator in Los Angeles,
California (or such other city as may be agreed upon by the parties)
and shall be administered by and in accordance with the then existing
Rules of Practice and Procedure of JAMS and judgement upon any award
rendered by the arbitrator may be entered by any State or Federal
Court having jurisdiction thereof. The arbitrator shall determine
which is the prevailing party and shall include in the award that
party's reasonable attorneys' fees and costs. This subparagraph shall
apply only if, at the time of the submission of the matter to JAMS,
the dispute or issues involved do not arise out of any transaction
which is secured by real property collateral or, if so secured, all
parties consent to such submission.
As soon as practicable after selection of the arbitrator, the
arbitrator, or the arbitrator's designated representative, shall
determine a reasonable estimate of anticipated fees and costs of the
arbitrator, and render a statement to each party setting forth that
party's pro-rata share of said fees and costs. Thereafter, each party
shall, within 10 days of receipt of said statement, deposit said sum
with the arbitrator. Failure of any party to make such a deposit
shall result in a forfeiture by the non-depositing party of the right
to prosecute or defend the claim which is the subject of the
arbitration, but shall not otherwise serve to xxxxx, stay or suspend
the arbitration proceedings.
D. STEP II - TRIAL BY COURT REFERENCE (CONTRACTS SECURED BY REAL
PROPERTY). If the dispute, claim or controversy is not one required or
agreed to be submitted to arbitration, as provided in the above
subparagraph, and has not been resolved by Step I mediation, then any
remaining dispute, claim or controversy shall be submitted for
determination by a trial on Order of Reference conducted by a retired
judge or justice from the panel of JAMS appointed pursuant to the
provisions of Section 638(l) of the California Code of Civil
Procedure, or any amendment, addition or successor section thereto, to
hear the case and report a statement of decision thereon. The parties
intend this general reference agreement to be specifically enforceable
in accordance with said section. If the parties are unable to agree
upon a member of the JAMS panel to act as referee, then one shall be
appointed by the Presiding Judge of the county wherein the hearing is
to be held. The parties shall pay in advance, to the referee, the
estimated reasonable fees and costs of the reference, as may be
specified in advance by the referee. The parties shall initially
share equally, by paying their proportionate amount of the estimated
fees and costs of the reference. Failure of any party to make such a
fee deposit shall result in a forfeiture by the non-depositing party
of the right to prosecute or defend any cause of action which is the
subject of the reference, but shall not otherwise serve to xxxxx, stay
or suspend the reference proceeding.
E. PROVISIONAL REMEDIES, SELF HELP AND FORECLOSURE. No provision
of, or the exercise of any rights under any portion of this Dispute
Resolution provision, shall limit the right of any party to exercise
self help remedies such as set off, foreclosure against any real or
personal property collateral, or the obtaining of provisional or
ancillary remedies, such as injunctive relief or the appointment of a
receiver, from any court having jurisdiction before, during or after
the pendency of any arbitration. At the Bank's option, foreclosure
under a deed of trust or mortgage may be accomplished either by
exercise of power of sale under the deed of trust or mortgage or by
judicial foreclosure. The institution and maintenance of an action
for provisional remedies, pursuit of provisional or ancillary remedies
or exercise of self help remedies shall not constitute a waiver of the
right of any party to submit the controversy or claim to arbitration.
21. ATTORNEYS' FEES. Whether or not any suit, action, arbitration or
other dispute resolution proceeding is instituted, the Guarantor agrees to pay
reasonable attorneys' fees and all other costs and expenses which may be
incurred in the collection of any Indebtedness, in the protection or
preservation of, or realization on, any collateral securing any Indebtedness
and in the enforcement by the Bank of this Guaranty.
22. GOVERNING LAW. This Guaranty shall be governed by and construed
according to the laws of the State of California and the Guarantor hereby
submits to the jurisdiction of the courts of the State of California.
23. ENTIRE AGREEMENT. This Guaranty and all documents, instruments and
agreements mentioned herein constitute the entire and complete understanding of
the parties with respect to the transactions contemplated hereunder. All
previous conversations, memoranda and writings between the parties pertaining
to the transactions contemplated hereunder not incorporated or referenced in
this Guaranty or in such documents, instruments and agreements are superseded
hereby.
24. HEADINGS. The headings used herein are solely for the purpose of
identification and have no legal significance.
25. ADDRESS OF THE BANK. The Bank's originating office under this
Guaranty is: Xxxxxxx Oaks Office, 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx, XX
00000.
26. MAXIMUM PRINCIPAL LIABILITY. THE MAXIMUM PRINCIPAL LIABILITY UNDER
THIS GUARANTY IS the amount of $1,600,000.00, plus interest at the rate(s)
applicable to any Indebtedness as set forth in the paragraph herein entitled
"Guaranty" and the expenses enumerated in the paragraph herein entitled
"Attorneys' Fees".
This Guaranty is made as of 8-16-96 which shall be the date of this Guaranty.
Executed by the undersigned Guarantor as of the date set forth above.
GUARANTOR:
X /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Address:
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
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