CONTINUING GUARANTY
Exhibit 10.2
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For valuable consideration, the undersigned, Colorlink Inc., a Delaware corporation (“Guarantor”), unconditionally guarantees and promises to pay City National Bank, a national banking association (“CNB”), or order, on demand, in lawful money of the United States, any and all indebtedness of RealD Inc., a Delaware corporation (“Borrower”) to CNB. The word “Indebtedness” is used herein in its most comprehensive sense and includes debts, obligations and liabilities of Borrower to CNB currently existing or now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether Borrower may be liable individually or jointly with others, or whether recovery upon such Indebtedness may be or become barred by any statute of limitations or otherwise unenforceable.
The liability of Guarantor shall not exceed at any one time an amount equal to the sum of Fifty Million & 00/100 Dollars ($50,000,000.00) for principal, plus all interest thereon and costs and expenses incurred in enforcing or collecting this Guaranty or the Indebtedness. In any event, CNB may permit the Indebtedness to exceed Guarantor’s liability under this Guaranty. This is a continuing guaranty relating to any Indebtedness, including but not limited to that arising under successive transactions which shall continue the Indebtedness or create new Indebtedness after satisfaction, payment or reduction of previous Indebtedness. The amount of Guarantor’s liability hereunder and under any other agreement now or at any time hereafter in force between Guarantor and CNB, including any other guaranty executed by Guarantor relating to any Indebtedness, shall be cumulative and not alternative. This Guaranty shall not apply to any new Indebtedness created after actual receipt by CNB of written notice from Guarantor revoking this Guaranty as to future transactions. Any payment by Guarantor shall not reduce Guarantor’s maximum obligation hereunder, unless written notice to that effect has been actually received by CNB at or prior to the time of such payment. This is a continuing guaranty and Xxxxxxxxx agrees that it shall remain in full force until and unless Guarantor delivers to CNB written notice that it has been revoked as to credit granted or Indebtedness incurred subsequent to the effective time of revocation as herein provided. Delivery of such notice shall not affect any of Guarantor’s obligations hereunder with respect to Indebtedness created or extended prior to the effective date of such revocation nor shall it affect any of the obligations of any other guarantor for the credit granted to or Indebtedness incurred by Xxxxxxxx.
The obligations hereunder are independent of the obligations of Xxxxxxxx, and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or whether Borrower is joined in any such action or actions; and Guarantor waives the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement thereof.
Either before or after revocation hereof, Guarantor authorizes CNB, without notice or demand and without affecting Guarantor’s liability hereunder, from time to time, to (a) renew, compromise, extend, accelerate or otherwise change any of the terms of the Indebtedness or any part thereof, including changing the rate of interest thereon or the time for payment thereof; (b) take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive and release any such security; (c) apply such security and direct the order or manner of sale or other disposition thereof as CNB in its discretion may determine; (d) apply payments received from Borrower or Guarantor, or any of them, to the Indebtedness of such order as CNB may determine in its sole discretion; and (e) release or substitute any Person liable on the Indebtedness, any other guarantor of the Indebtedness, or any other Person providing support for the Indebtedness to CNB, this Guaranty, or any other guaranty. As used in this Guaranty, “Person” means any individual or entity.
Guarantor waives any right to require CNB to (a) proceed against Borrower, Guarantor or any other guarantor; (b) proceed against or exhaust any security or other support for the Indebtedness granted by Xxxxxxxx, Guarantor, or any other guarantor or Person; or (c) pursue any other remedy in CNB’s power whatsoever. Guarantor waives any defense arising by reason of (i) any disability or other defense of Borrower; (ii) the cessation from any cause whatsoever of the liability of Borrower for the Indebtedness for any reason other than payment in full and final satisfaction; or (iii) the non-perfection of any security or support for the Indebtedness, this Guaranty, or any other guaranty of the Indebtedness. Guarantor shall have no right of subrogation to and waives any right to enforce any remedy which CNB now has or may hereafter have against Borrower, and waives any benefit of, any right to participate in, and any right to direct the application of any security for the Indebtedness, this Guaranty or any other guaranty of the Indebtedness, now or hereafter held by CNB, whether any of the foregoing rights arise in equity, at law or by contract. Without
limiting the generality of the foregoing, Guarantor specifically waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of California Code of Civil Procedure or otherwise. For purposes of the waiver just given, the “creditor” referred to therein is CNB, and the “principal” is the Borrower. Guarantor waives all presentments, demands for performance, notices of nonperformance, or other defaults, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional Indebtedness. Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Xxxxxxxx and of all other circumstances bearing upon the risk of nonpayment of the Indebtedness which diligent inquiry would reveal, and agrees that CNB shall have no duty to advise Guarantor of information known to CNB regarding such condition or circumstances.
Without limiting any waiver of rights of subrogation contained herein, any indebtedness of Borrower now or hereafter held by Guarantor is hereby subordinated to the Indebtedness; and such indebtedness of Borrower to Guarantor, if CNB so requests, shall be collected, enforced and received by Guarantor as trustee for CNB and be paid over to CNB on account of the Indebtedness but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. CNB shall have rights of setoff against, and bankers’ liens upon all monies, securities and other properties of Guarantor to the extent provided by law.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any Indebtedness by Borrower or any other guarantor is avoided as a preference, or on any other grounds provided by law, or must otherwise be returned by CNB as a result of an order for relief being entered with respect to Borrower or any other guarantor under the United States Bankruptcy Code, or as a result of Borrower’s or any other guarantor’s assignment for the benefit of creditors.
Where Borrower is a corporation, partnership or limited liability company, it is not necessary for CNB to inquire into the powers of Borrower or the officers, directors, partners or agents acting or purporting to act on its behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
Guarantor has entered into this Guaranty with the understanding that CNB may rely upon it to the exclusion of any other guaranties. CNB has not, nor has Borrower represented that there are or may be other guarantors. Nothing in this Guaranty, however, shall bind CNB to seek other guarantors, separate and apart from the undersigned. Guarantor understands that CNB may already have, or concurrently herewith may have obtained or hereafter may obtain other guarantors (one or more, several or joint) of the Indebtedness. Such guarantors, heretofore, herewith, or hereafter obtained, shall in no way affect Guarantor’s complete liability hereunder for the full amount of the Indebtedness. Nothing herein shall require CNB to sue all of the guarantors severally or together or to sue more than one or to prorate the above liability among the guarantors or any of them. Guarantor agrees that CNB may, in its sole and uncontrolled discretion, sue any one or more of the guarantors for all of the Indebtedness; and within its sole and uncontrolled discretion CNB may take judgment against any one of the guarantors for all of the Indebtedness, plus interest, costs and attorneys’ fees, or, within its sole discretion, CNB may prorate such judgment between or among one or more of the guarantors.
Guarantor represents and warrants to CNB that (a) Guarantor’s most recent financial statements that have been delivered to CNB are true, complete and correct and fairly present the financial condition of Guarantor as of the accounting period referenced on the statements, and there has been no material adverse change in the financial condition of Guarantor since the date of such financial statements, and (b) Guarantor’s most recent federal income tax return and all schedules attached to such return (“Federal Tax Return”) that have been delivered to CNB are a true and correct copy of such Federal Tax Return filed with the Internal Revenue Service for the tax period ending on the date indicated in such Federal Tax Return.
Guarantor agrees to pay reasonable attorneys’ fees and all other costs and expenses which may be incurred by CNB (or allocable to CNB’s in-house counsel) in the enforcement of this Guaranty, or the collection of any Indebtedness of Borrower to CNB, irrespective of whether suit is filed, or in the renewal, extension or restructure of any Indebtedness, irrespective of whether such renewal, extension or restructure is consummated.
When there is more than one Borrower named herein, or when this Guaranty is executed by more than one Guarantor, the word “Borrower” and the word “Guarantor,” respectively, shall mean all and any one or more of them and each promise and obligation set forth herein shall be joint and several.
This Guaranty shall benefit CNB, its successors and assigns, and shall bind Guarantor’s successors and assigns. This Guaranty is assignable by CNB with respect to all or any portion of the Indebtedness and obligations guaranteed hereunder, and when so assigned Guarantor shall be liable to the assignees under this Guaranty without in any manner affecting Guarantor’s liability hereunder with respect to any Indebtedness or obligations retained by CNB.
If any term, provision, covenant or condition of this Guaranty is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
This Guaranty shall be governed by and construed in accordance with the laws of the State of California and venue and jurisdiction with respect hereto shall be with any court of competent jurisdiction located in the county in the State of California where the Indebtedness is payable.
Any notice to CNB required hereunder shall not be effective against CNB unless it is given in writing, and actually received by CNB, to the attention of “Manager” at each address where the Indebtedness is payable, with a copy to: City National Bank, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: General Counsel.
This Guaranty is intended by Guarantor and CNB as the final expression of Guarantor’s obligations and liabilities to CNB described herein and is intended as a complete statement of their agreement concerning the subject matter hereof. This Guaranty may be amended only by a writing signed by Xxxxxxxxx and agreed to by CNB.
This Continuing Guaranty is executed by Guarantor this 5th day of April, 2011.
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Colorlink Inc., a Delaware corporation |
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/s/ Xxxxxxx X. Xxxxx |
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Xxxxxxx X. Xxxxx, Chief Executive Officer |
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(S.S. or Tax I.D. No.) 00-0000000 |
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