EXHIBIT 10.33
[LETTERHEAD OF SANWA BANK APPEARS HERE]
CONTINUING GUARANTY
For value received and in consideration of the extension of credit by SANWA BANK
CALIFORNIA (the "Bank") to ATG INC. (the "Debtor") or the benefits to the
undersigned (the "Guarantor"), guaranties 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, or 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 its 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 froth 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 received 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
JUDGMENT. 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 continued in Section 2809 of the California Civil Code
and as it may be amended or superseded in the future).
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.
X. Xxxxxx's Defense. 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.
X. Xxxxxx'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 the 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
condition, credit or character of the Debtor, any endorser, cosigner,
other guarantor or other person liable on any Indebtedness; (iii) any
present or future
(1)
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 to 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
on 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) Financial Statements. Not later than April
1st of each year, a copy of the personal financial statement of the
Guarantor for such year; and (ii) Tax Returns. Within 10 days of filing
but not later than October 31st of each year, a copy of the Guarantor's
federal income tax returns filed for each year.
11. Acknowledgment 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 guaranteed 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 party 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 & Medication Services, Inc. ("JAMS") as follows:
(2)
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 information, non-binding
conference or conferences between the parties in which a referred 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 arbitration 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 judgment 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-deposing 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:
Oakland Main Office, 0000 Xxxxxxxx, Xxxxxxx, XX 00000.
26. Maximum Principal Liability. THE MAXIMUM PRINCIPAL LIABILITY UNDER THIS
GUARANTY IS the amount of $8,000,000.00, plus interest at the rate(s) applicable
to any Indebtedness as set forth in the paragraph herein entitled "Guaranty" and
the expenses estimated in the paragraph herein entitled "Attorneys' Fees".
This Guaranty is made as of March 6, 1998, which shall be the date of this
Guaranty.
Executed by the undersigned Guarantor as of the date set forth above.
GUARANTOR:
X
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Xxxxxx Xxxx
Address:
00000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(3)
