EXHIBIT 10.12
CONTINUING GUARANTY (UNLIMITED)
1. GUARANTEE. For value received, and to induce U.S. BANK N.A. (the
"Bank") to extend or continue credit or other financial accommodations now or in
the future to XXX XXXXXX (the "Borrower"), the undersigned (the "Guarantor")
hereby absolutely and unconditionally jointly and severally guarantees prompt
payment of and promises to pay or cause to be paid to the Bank the Obligations
(as herein after defined), whether or not the Obligations are valid and
enforceable against the Borrower, whenever the Obligations become due, whether
on demand, at maturity or by reason of acceleration, or at the time the Borrower
or the Guarantor shall become the subject of any bankruptcy or insolvency
proceeding.
As used herein, the term "OBLIGATIONS" shall mean all loans, drafts,
overdrafts, checks, notes and all other debts, liabilities and obligations of
every kind owing by the Borrower to the Bank, whether direct or indirect,
absolute or contingent, liquidated or unliquidated whether of the same or a
different nature and whether existing now or in the future, including interest
thereon and all costs, expenses and reasonable attorneys' fees (including fees
of inside counsel) paid or incurred by the Bank at any time before or after
judgment in attempting to collect any of the foregoing, to realize on any
collateral securing any of the foregoing or this Guaranty, and to enforce this
Guaranty. The definition of "Obligations" also includes the amount of any
payments made to the Bank or another on behalf of the Borrower (including
payments resulting from liquidation of collateral) which are recovered from the
Bank by a trustee, receiver, creditor or other party pursuant to applicable
Federal or state law (the "SURRENDERED PAYMENTS"). In the event that the Bank
makes any Surrendered Payments (including pursuant to a negotiated settlement),
the Surrendered Payments shall immediately be reinstated as Obligations,
regardless of whether the Bank has surrendered or cancelled this Guaranty prior
to returning the Surrendered Payments.
2. CONSENT TO BANK ACTIONS; NO DISCHARGE. The Guarantor agrees that
the Bank does not have to take any steps whatsoever to realize upon any
collateral securing the Obligations, or to proceed against the Borrower or any
other guarantor or surety for the Obligations either before or after proceeding
against the Guarantor; and the Guarantor waives any claim of marshalling of
assets against the consent of, the Guarantor, without reducing or discharging
the Guarantor's liability under this Guaranty: (i) renew, amend, modify, extend
or release any existing or future Obligations (including making additional
advances, or changing the interest rate or amount, time or manner of payment of
any Obligations), and make additional extensions of credit to the Borrower
(which will become additional Obligations), regardless of when such
modifications or additional extensions of credit are made, and regardless of
whether they are similar to or different from any other Obligations; (ii) amend,
supplement and waive compliance with any of the provisions of documents securing
any Obligation or this Guaranty, or the liability of any other party responsible
for payment of any Obligation; and (iv) accept other guarantor to the
Obligations (or any other amounts due to the Bank) in any manner that the Bank
elects. The Guarantor also expressly agrees that the Guarantor's liability will
not be reduced or discharged by the Bank's failure or delay in perfecting (or to
continue perfection of) any security interest, mortgage or other lien on any
collateral securing the Obligations or this Guaranty, or to protect the value or
condition of any such collateral. THE GUARANTOR SPECIFICALLY ACKNOWLEDGES THAT
THIS GUARANTY COVERS ALL EXISTING AND FUTURE OBLIGATIONS OF THE BORROWER TO THE
BANK REGARDLESS OF THE AMOUNT OF THOSE OBLIGATIONS; THAT THE BANK CAN MAKE
ADDITIONAL EXTENSIONS OF CREDIT TO THE BORROWER WITHOUT NOTIFYING THE GUARANTOR;
AND THAT THE BANK CAN DEMAND PAYMENT FROM AND IMPOSE LIABILITY ON THE GUARANTOR
WITHOUT FIRST TRYING TO COLLECT FROM THE BORROWER OR ANY OTHER GUARANTOR.
3. WAIVERS. The Guarantor expressly waives all rights of setoff and
counterclaims, as well as diligence in collection or prosecution, presentment,
demand of payment or performance, protest, notice of dishonor, nonpayment or
nonperformance of any Obligation. The Guarantor also expressly waives notice of
acceptance of the Guaranty, and the right to receive all other notices and
demands of any kind relating to the Obligations or this Guaranty. The Guarantor
agrees that any right of subrogation as to payment or enforcement of any
security interest securing the Obligations shall not be enforceable by any
Guarantor until the Bank is paid in full. In addition to, and not in
substitution or lieu of, all of the other waivers and releases contained herein
from the Guarantor, Guarantor herby specifically, unconditionally and jointly
and severally waives any and all defenses predicated upon: (i) change of
ownership of any collateral covered by any mortgage, deed of trust or security
agreement or other security instrument securing the Obligations; (ii) acquiring
additional collateral; (iii) substitution of different collateral in exchange or
exchanges for part or parts of any original collateral; (iv) sale or other
disposition, either in whole or in part, of any collateral for the Obligations,
without notice to the Guarantor unless otherwise required by applicable law; (v)
the fact that there may be persons other than the Guarantor solvent and
responsible for the payment of the Obligations; (vi) release, death,
dissolution, liquidation or termination of the existence of the Borrower or any
other guarantor; (vii) an election of remedies; or (viii) any other defenses
based on suretyship or impairment of collateral.
4. FINANCIAL INFORMATION. The Guarantor warrants that all financial
information previously provided to the Bank was accurate when given, and that no
material adverse change has occurred in the Guarantor's financial status since
such information was given to the Bank. The Guarantor agrees to provide to the
Bank from time to time upon request any information regarding the Guarantor's
financial condition which the Bank reasonably requests; and without request, the
Guarantor will provide annual financial statements in form and content
satisfactory to the Bank within 60 days of the end of each year.
5. XXXXXXXX'S FINANCIAL CONDITION. The Guarantor warrants and
represents to the Bank that (i) the Guarantor is sufficiently knowledgeable and
experienced in financial and business matters to evaluate and understand the
risks assumed in connection with the execution of this Guaranty; (ii) the
Guarantor has had the opportunity to examine the records, reports, financial
statements, and other information relating to the financial condition of the
Borrower; (iii) the Guarantor has relied solely upon investigations of the
Borrower's financial condition conducted by the Guarantor or the Guarantor's
authorized representative in deciding to execute this Guaranty; and (iv) the
Guarantor, or its authorized representative, shall continue to independently
review, monitor and investigate the financial condition of the Borrower while
this Guaranty is in effect. THE GUARANTOR SPECIFICALLY RELIEVES THE BANK OF ANY
DUTY, OBLIGATION OR RESPONSIBILITY OF ANY NATURE WHATSOEVER TO ADVISE THE
GUARANTOR OF ANY CHANGE IN THE BORROWER'S FINANCIAL CONDITION.
6. COLLATERAL; SETOFF. The Guarantor grants to the Bank a security
interest in all property in which the Guarantor has an ownership interest which
is now or in the future in the possession of the Bank to secure payment under
this Guaranty. The Guarantor hereby authorizes the Bank, without further notice
to anyone, to charge any account of the Guarantor for the amount of any and all
Obligations due under this Guaranty, and grants the Bank a contractual right to
set off (WITHOUT NOTICE OR DEMAND) amounts due hereunder against all depository
account balances, cash and other property now or hereafter in the possession of
the Bank and the right to refuse to allow withdrawals from any account
(collectively "SETOFF"). This Guaranty is also secured by any and all security
interests, pledges or liens now or hereafter in existence granted to the Bank to
secure indebtedness of the Guarantor to the Bank, including without limitation
as described in the following
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documents: ALL ACCOUNTS, ALL INVENTORY AND ALL EQUIPMENT.
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7. DURATION OF GUARANTY; REVOCATION; CONTINUING OBLIGATIONS. This is a
continuing Guaranty and shall not be revoked by death, dissolution, merger,
bankruptcy, incompetency or insolvency of the Guarantor. This Guaranty shall
remain in full force and effect with respect to the Guarantor until the Bank
receives written notice from the Guarantor revoking this Guaranty as to the
Guarantor. In the event that this Guaranty is revoked by the Guarantor, said
revocation shall have no effect on the continuing liability of the Guarantor to
guarantee unconditionally the prompt payment of all Obligations which are
contracted or incurred before the revocation becomes effective, including such
prior Obligations which are subsequently renewed, modified or extended after the
revocation becomes effective, as well as all extensions of credit made after
revocation pursuant to commitments made prior to such revocation. Revocation of
this Guaranty by any Guarantor shall not relieve any other Guarantor of any
liability hereunder after the effective date of such revocation.
8. ACCELERATION OF OBLIGATIONS; SUCCESSORS; MULTIPLE GUARANTORS. If the
Guarantor shall die, become the subject of any incompetency proceedings, become
the subject of any bankruptcy or insolvency proceedings, or fail to comply with
the terms of this Guaranty, any document securing this guaranty or any related
document, the Guarantor's liability hereunder to pay the Obligations shall
become immediately due and payable whether or not the Obligations are then due
and payable by the Borrower or any other guarantor. This Guaranty shall inure to
the benefit of the Bank, its successors and assign and of the holder and owner
of any of the Obligations, and shall be binding on heirs, executors,
administrators, successors and assigns of the Guarantor. If there is more than
one Guarantor, the liability of the Guarantors shall be joint and several, and
the reference to the "Guarantor" shall be deemed to refer to all Guarantors.
9. SEVERABILITY; PRIOR AGREEMENTS; AMENDMENT. Invalidity of any provision
of this Guaranty shall not affect the validity of any other provision. This
Guaranty, the collateral documents securing this Guaranty and the documents
evidencing the Obligations contain the entire agreement of the parties regarding
this matter; and any prior representations, promises or agreements (whether oral
or written) which are not a part of this Guaranty or the documents described
above are not enforceable. The terms of this Guaranty may not be altered,
amended or waived except by another written agreement signed by the Guarantor
and the Bank. Unless specifically limited in scope this Guaranty shall not
supersede any earlier guaranty of the Guarantor in which the Bank has an
interest nor shall any later guaranty supersede this Guaranty. The effect of any
earlier or later guaranty shall be cumulative with this Guaranty.
10. COPIES; ENTIRE AGREEMENT; MODIFICATION. THE GUARANTOR HEREBY
ACKNOWLEDGES THE RECEIPT OF A COPY OF THIS GUARANTY. IMPORTANT: READ BEFORE
SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING, EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT MAY ONLY BE
CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH
RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN GUARANTOR AND THE
BANK. A MODIFICATION OF ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN
GUARANTOR AND THE BANK, WHICH OCCURS AFTER RECEIPT BY GUARANTOR OF THIS NOTICE,
MAY BE MADE ONLY BY ANOTHER WIRTTEN INSTURMENT. ORAL OR IMPLIED MODIFICATIONS TO
SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
11. GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by the
internal laws of the State of CALIFORNIA, except to the extent superseded by
Federal law. THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT SITUATED IN THE COUNTY OR FEDERAL JURISDICITON OF THE
BANK'S BRANCH WHERE THE LOAN WAS ORIGINATED, AND WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, WITH REGARD TO ANY ACTION, CLAIMS, DISPUTES OR PROCEEDINGS
RELATING TO THIS GUARANTY, THE COLLATERAL, ANY RELATED DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATIONS OF ANY OF
THE FOREGOING. Nothing herein shall affect the Bank's right to serve process in
any manner permitted by law, or limit the Bank's right to bring proceedings
against the Guarantor in the competent courts of any other jurisdiction or
jurisdictions.
12. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE BANK HEREBY JOINTLY AND
SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY, ALL DOCUMENTS RELATING TO THE GUARANTOR AND THE BANK
EACH REPRESENTS TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
Dated: NOVEMBER 7, 2002
NUTECH DIGITAL, INC.
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(Individual Guarantor) Guarantor Name (Organization)
(SEAL) a CALIFORNIA CORPORATION
Guarantor Name N/A By
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(XXXX) Name and Title XXX XXXXXX, PRESIDEN/SECRETARY
Guarantor Name N/A By
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Name and Title
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PURPOSE AND CONSENT. Each Guarantor who is married represents that this
obligation is incurred in the interest of his or her marriage or family. The
spouse of each Guarantor who has not signed above as a Guarantor consents to the
Guarantor entering into this Guaranty, BUT SAID SPOUSE OF EACH GUARANTOR IS NOT
A PARTY TO THIS GUARANTY.
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N/A Date:
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Guarantor
N/A Date:
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Guarantor's Spouse
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