EXHIBIT 10.33
CONTINUING GUARANTY
TO: XXXXX FARGO BANK. NATIONAL ASSOCIATION
1. GUARANTY; DEFINITIONS. In consideration of the credit or
other financial accommodation described herein and extended or
made to AUTO-GRAPHICS, INC. (Borrowers), or any of them, by XXXXX
FARGO BANK, NATIONAL ASSOCIATION (Bank), and for other valuable
consideration, the undersigned XXXXXX X. XXXX (Guarantor),
jointly and severally unconditionally guarantees and promises to
pay to Bank or order, on demand in lawful money of the United
States of America and in immediately available funds, any and all
Indebtedness of any of the Borrowers to Bank. The term
Indebtedness is used herein in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities
of Borrowers, or any of them, heretofore. 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 Borrowers may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may be or
hereafter becomes unenforceable.
2. MAXIMUM LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION;
OBLIGATION UNDER OTHER GUARANTIES. The liability of Guarantor
shall not exceed at any one time the sum of $4,375,000.00 for
principal, plus all interest thereon and costs and expenses
pertaining to the enforcement of this Guaranty and/or the
collection of the indebtedness of any of the Borrowers to Bank.
Notwithstanding the foregoing, Bank may permit the Indebtedness
of Borrowers to exceed Guarantor's liability. This is a
continuing guaranty and all rights, powers and remedies hereunder
shall apply to all past, present and future Indebtedness of each
of the Borrowers to Bank, including that arising under successive
transactions which shall either continue the Indebtedness,
increase or decrease it, or from time to time create new
indebtedness after all or any prior Indebtedness has been
satisfied and notwithstanding the death, incapacity, dissolution,
liquidation or bankruptcy of any Borrowers or Guarantor or any
other event or proceeding affecting any of the Borrowers or
Guarantor. This Guaranty shall not apply to any new Indebtedness
created after actual receipt by Bank of written notice of its
revocation as to such new Indebtedness; provided however, that
loans or advances made by the Bank to any of the Borrowers after
revocation under the commitments existing prior to receipt by
Bank of such revocation, and extensions, renewals or
modifications, of any kind, of indebtedness incurred by any of
the Borrowers or committed by Bank prior to receipt by Bank of
such revocation, shall not be considered new Indebtedness. Any
such notice must be sent to Bank by registered US mail, postage
prepaid, addressed to its office at 000 Xxxxx Xxxxx Xxx. 0xx
Xxxxx, Xxx Xxxxxxx, XX 00000, or at such other address as Bank
shall from time to time designate. Any payment by Guarantor with
respect to the Indebtedness shall not reduce Guarantor's maximum
obligation hereunder unless written notice to that effect is
actually received by the Bank at or prior to the time of such
payment. The obligations of Guarantor hereunder shall be in
addition to any obligations of Guarantor under any other
guaranties of any liabilities or obligations of any of the
Borrowers or any other persons heretofore or hereafter given to
Bank unless said other guaranties are expressly modified or
revoked in writing; and this Guaranty shall not, unless expressly
herein provided, affect or invalidate any such other guaranties.
3. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER
OF STATUTE OF LIMITATIONS; REINSTATEMENT OF LIABILITY. The
obligations hereunder are joint and several and independent of
the obligations of Borrowers, and a separate action or actions
may be brought and prosecuted against Guarantor whether action is
brought against any of the Borrowers or any other person, or
whether any of the Borrowers or any other person is joined in any
such action or actions. Guarantor acknowledges that this
Guaranty is absolute and unconditional, there are no conditions
precedent to the effectiveness of this Guaranty, and this
Guaranty is in full force and effect and is binding on Guarantor
as of the date written below, regardless of whether Bank obtains
collateral or any guaranties from others or takes any other
action contemplated by Guarantor. Guarantor waives the benefit
of any statute of limitations affecting Guarantor's liability
hereunder or the enforcement thereof, and Guarantor agrees that
any payment of any Note Indebtedness or other act which shall
toll any statute of limitations applicable thereto shall
similarly operate to toll such statute of limitations applicable
to Guarantor's liability hereunder. The liability of Guarantor
hereunder shall be reinstated and revived and the rights of Bank
shall continue if and to the extent that for any reason any
amount at any time paid on account of any Note Indebtedness
guaranteed hereby is rescinded or must otherwise be restored by
Bank, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, all as though such amount had not
been paid. The determination as to whether any amount so paid
must be rescinded or restored shall be made by Bank in its sole
discretion; provided however, that if Bank chooses to contest any
such matter at the request of Guarantor, Guarantor agrees to
indemnify and hold Bank harmless from and against all costs and
expenses, including reasonable attorneys' fees, expended or
incurred by Bank in connection therewith, including without
limitation, in any litigation with respect thereto.
4. AUTHORIZATIONS TO BANK. Guarantor authorizes Bank,
without notice to or demand an Guarantor. and without affecting
Guarantor's liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the
time for payment of, or otherwise change the terms of, the Note
Indebtedness or any portion thereof, including increase or
decrease of the rate of interest thereon; (b) take and hold
security for the payment of this Guaranty or the Note
Indebtedness or any portion thereof, and exchange, enforce,
waive, subordinate or release any such security; (c) apply such
security and direct the order or manner of sale thereof,
including without limitation, a non-judicial sale permitted by
the terms of the controlling security agreement or deed of trust,
as Bank in its discretion may determine; (d) release or
substitute any one or more of the endorsers or any other
guarantors of the Note Indebtedness, or any portion thereof, or
any other party thereto; and (e) apply payments received by Bank
from any of the Borrowers to any Indebtedness of any of the
Borrowers to Bank, in such order as Bank shall determine in its
sole discretion, whether or not such Indebtedness is covered by
this Guaranty, and Guarantor hereby waives any provision of law
regarding application of payments which specifies otherwise.
Bank may without notice assign this Guaranty in whole or in part.
Upon Bank's request, Guarantor agrees to provide to Bank copies
of Guarantor's financial statements.
5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Bank that: (a) this Guaranty is executed at
Borrowers' request; (b) Guarantor shall not, without Bank's prior
written consent, sell, lease assign, encumber, hypothecate,
transfer or otherwise dispose of all or a substantial or material
part of Guarantors assets other than in the ordinary course of
Guarantor's business; (c) Bank has made no representation to
Guarantor as to the creditworthiness of any of the Borrowers; and
(d) Guarantor has established adequate means of obtaining from
each of the Borrowers on a continuing basis financial and other
information pertaining to Borrowers' financial condition.
Guarantor agrees to keep adequately informed from such means of
any facts, events or circumstances which might in any way affect
Guarantor's risks hereunder, and Guarantor further agrees that
Bank shall have no obligation to disclose to Guarantor any
information or material about any of the Borrowers which is
acquired by Bank in any manner.
6. GUARANTOR'S WAIVERS.
(a) Guarantor waives any right to require Bank to: (i) proceed
against any of the Borrowers or any other person; (ii) marshal
assets or proceed against or exhaust any security held from any
of the Borrowers or any other person; (iii) give notice of the
terms, time and place of any public or private sale of personal
property security held from any of the Borrowers or any other
person, or otherwise comply with the provisions of Section 9504
of the California Uniform Commercial Code; (iv) take any action
or pursue any other remedy in Bank's power, or (v) make any
presentment or demand for performance, or give any notice of
nonperformance, protest, notice of protest or notice of dishonor
hereunder or in connection with any obligations or evidences of
indebtedness held by Bank as security for or which constitute in
whole or in part the Note Indebtedness guaranteed hereunder, or
in connection with the creation of new or additional
Indebtedness.
(b) Guarantor waives any defense to its obligations hereunder
based upon or arising by reason of: (i) any disability or other
defense of any of the Borrowers or any other person; (ii) the
cessation or limitation from any cause whatsoever, other than
payment in full, of the Note Indebtedness; (iii) any lack of
authority of any officer, director, partner, agent or other
person acting or purporting to act on behalf of any of the
Borrowers which is a corporation, partnership or other type of
entity. or any defect in the formation of any such Borrower, (iv)
the application by any of the Borrowers of the proceeds of the
Note Indebtedness for purposes other than the purposes
represented by Borrowers to, or intended or understood by, Bank
or Guarantor, (v) any act or omission by Bank which directly or
indirectly results in or aids the discharge of any of the
Borrowers or any portion of the Note Indebtedness by operation of
law or otherwise, or which in any way impairs or suspends any
rights or remedies of Bank against any of the Borrowers; (vi) any
impairment of the value of any interest in any security for the
Note Indebtedness or any portion thereof, including without
limitation, the failure to obtain or maintain perfection or
recordation of any interest in any such security, the release of
any such security without substitution, and/or the failure to
preserve the value of, or to comply with applicable law in
disposing of, any such security; or (vii) any modification of the
Note Indebtedness, in any form whatsoever, including without
limitation the renewal. extension, acceleration or other change
in time for payment of, or other change in the terms of, the Note
Indebtedness or any portion thereof, including increase or
decrease of the rate of interest thereon. Until all Note
Indebtedness shall have been paid in full, Guarantor shall have
no right of subrogation, and Guarantor waives any right to
enforce any remedy which Bank now has or may hereafter have
against any of the Borrowers or any other person, and waives any
benefit of, or any right to participate in, any security now or
hereafter held by Bank. Guarantor further waives all rights and
defenses Guarantor may have arising out of (A) any election of
remedies by Bank, even though that election of remedies. such as
a non-judicial foreclosure with respect to any security for any
portion of the Note Indebtedness, destroys Guarantor's rights of
subrogation or Guarantor's rights to proceed against any of the
Borrowers for reimbursement, or (B) any loss of rights Guarantor
may suffer by reason of any rights, powers or remedies of any of
the Borrowers in connection with any anti-deficiency laws or any
other laws limiting, qualifying or discharging Borrowers'
Indebtedness, whether by operation of Sections 726, 580a or 580d
of the Code of Civil Procedure as from time to time amended, or
otherwise, including any rights Guarantor may have to a Section
580a fair market value hearing to determine the size of a
deficiency following any trustee's foreclosure sale or other
disposition of any real property security for any portion of the
Indebtedness.
7. BANK'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN
BANK'S POSSESSION. In addition to all liens upon and rights of
setoff against the monies, securities or other property of
Guarantor given to Bank by law, Bank shall have a lien upon and a
right of setoff against all monies, securities and other property
of Guarantor now or hereafter in the possession of or on deposit
with Bank, whether held in a general or special account or
deposit or for safekeeping or otherwise, and every such lien and
right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have
been waived by any act or conduct on the part of Bank, or by any
neglect to exercise such right of setoff or to enforce such lien,
or by any delay in so doing, and every right of setoff and lien
shall continue in full force and effect until such right of
setoff or lien is specifically waived or released by Bank in
writing.
8. SUBORDINATION. Any Indebtedness of any of the Borrowers
now or hereafter held by Guarantor is hereby subordinated to the
obligations of Borrowers to Bank under the Note Indebtedness.
Such Indebtedness of Borrowers to Guarantor is assigned to Bank
as security for this Guaranty and the Note Indebtedness and, if
Bank requests, shall be collected and received by Guarantor as
trustee for Bank and paid over to Bank on account of the Note
Indebtedness but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this
Guaranty. Any notes or other instruments now or hereafter
evidencing such Indebtedness of any of the Borrowers to Guarantor
shall be marked with a legend that the same are subject to this
Guaranty and, if Bank so requests, shall be delivered to Bank.
Guarantor will, and Bank is hereby authorized in the name of
Guarantor from time to time to, execute and file financing
statements and continuation statements and execute such other
documents and take such other action as Bank deems necessary or
appropriate to perfect preserve and enforce its rights hereunder.
9. REMEDIES; NO WAIVER. All rights, powers and remedies of
Bank hereunder are cumulative. No delay, failure or
discontinuance of Bank in exercising any right, power or remedy
hereunder shall affect or operate as a waiver of such right,
power or remedy; nor shall any single or partial exercise of any
such right, power or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver, permit, consent or
approval of any kind by bank of any breach of this Guaranty. or
any such waiver of any provisions or conditions hereof, must be
in writing and shall be effective only to the extent set forth in
writing.
10. COSTS, EXPENSES AND ATTORNEYS' FEES. Guarantor shall pay
to Bank immediately upon demand the full amount of all payments,
advances, charges, costs and expenses, including reasonable
attorneys' fees (to include outside counsel fees and all
allocated costs of Bank's in-house counsel ), expended or
incurred by Bank in connection with the enforcement of any of
Bank's rights, powers or remedies and/or the collection of any
amounts which become due to Bank under this Guaranty, and the
prosecution or defense of any action in any way related to this
Guaranty, whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the
foregoing incurred in connection with any bankruptcy proceeding
(including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other (person)
relating to Guarantor or any other person or entity. All of the
foregoing shall be paid by Guarantor with interest from the date
of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or Bank's Prime Rate in effect from
time to time. The Prime Rate is a base rate that Bank from time
to time establishes and which serves as the basis upon which
effective rates of interest are calculated for those loans making
reference thereto.
11. SUCCESSORS; ASSIGNMENT. This Guaranty shall be binding
upon and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns of
the parties, provided however, that Guarantor may not assign or
transfer any of its interests or rights hereunder without Bank's
prior written consent Guarantor acknowledges that Bank has the
right to sell, assign, transfer, negotiate or grant participation
in all or any part of, or any interest in, the Note Indebtedness
and any obligations with respect thereto, including this
Guaranty. In connection therewith. Bank may disclose all
documents and information which Bank now has or hereafter
acquires relating to Guarantor and/or this Guaranty, whether
furnished by Borrowers, Guarantor or otherwise. Guarantor
further agrees that Bank may disclose such documents and
information to Borrowers.
12. AMENDMENT. This Guaranty may be amended or modified only
in writing signed by Bank Guarantor.
13. OBLIGATIONS OF MARRIED PERSONS. Any married person who
signs this Guaranty as a Guaranty hereby expressly agrees that
recourse may be had against his or her separate property for all
his or her obligate under this Guaranty.
14. APPLICATION OF SINGULAR AND PLURAL. In all cases where
there is but a single Borrower, then all words used herein in the
plural shall be deemed to have been used in the singular where
the context and construction so require; and when there is more
than one Borrower named herein, or when this Guaranty is executed
by more than one Guarantor, the word Borrowers and the word
Guarantor respectively shall mean all or any one more of them as
the context requires.
15. UNDERSTANDING WITH RESPECT TO, WAIVERS; SEVERABILITY OF
PROVISIONS. Guarantor warrants and agrees that each of the
waivers set forth herein is made with Guarantor's full knowledge
of significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary public
policy or law. If any waiver or other provision of this
Agreement shall be held to be prohibited by or invalid under
applicable public policy or law, such waiver or other provision
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such waiver or
other provision or any remaining provisions of this Agreement.
16. GOVERNING LAW. This Guaranty shall be governed by and
construed in accordance with the laws of the state of California.
17. ARBITRATION.
(a) Arbitration. Upon the demand of any party, any Dispute
shall be resolved by binding arbitration (except as set forth in
(e) below) in accordance with the terms of this Guaranty. A
Dispute shall mean any action, dispute claim or controversy of
any kind, whether in contract or tort, statutory or common law,
legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to, this Guaranty and
each other, document, contract and instrument required hereby or
now or hereafter delivered to Bank in connection herewith
(collectively, the Documents), or any past present or future
extensions of credit and other activities, transactions or
obligations of any kind related directly or indirectly to any of
the Documents, including without limitation, any of the foregoing
arising in connection with the exercise of any self-help,
ancillary or other remedies pursuant to any of the Documents.
Any party may by summary proceedings bring an action in court to
compel arbitration of a dispute. Any party who fails or refuses
to submit to arbitration following a lawful demand by any other
party shall bear all costs and expenses incurred by such other
party in compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be
administered by the American Arbitration Association (AAA) or
such other administrator as the parties shall mutually agree upon
in accordance with the AAA Commercial Arbitration Rules. All
Disputes submitted to arbitration shall be resolved in accordance
with the Federal Arbitration Act (Title 9 of the United States
Code) notwithstanding any conflicting choice of law provision in
any of the Documents. The arbitration shall be conducted at a
location in California selected by the AAA or other
administrator. If there is any inconsistency between the terms
hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to
any Dispute shall apply to any arbitration proceeding. All
discovery activities shall be expressly limited to matters
directly relevant to the Dispute being arbitrated. Judgment upon
any award rendered in an arbitration may be entered in any court
having jurisdiction provided however, that nothing contained
herein shall be deemed to be a waiver by any party that is a bank
of the protections afforded to it under 12 U.S.C. 91 or any
similar applicable state law.
(c) No Waiver Provisional Remedies, Self-Help and Foreclosure.
No provision hereof shall limit the right any party to exercise
self-help remedies such as setoff, foreclosure against or sale of
any real or personal property collateral or security, or to
obtain provisional or ancillary remedies, including without
limitation injunctive relief. sequestration, attachment,
garnishment or the appointment of a receiver, from a court of
competent jurisdiction before, after or during the pendency of
any arbitration or other proceeding. The exercise of any such
remedy shall not waive the right of any party to compel
arbitration or reference hereunder.
(d) Arbitrator Qualifications and Powers: Awards. Arbitrators
must be active members of the California State Bar or retired
judges of the state or federal judiciary of California, with
expertise in the substantive law applicable to the subject matter
of the Dispute. Arbitrators are empowered to resolve Disputes by
summary rulings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes
in accordance with the substantive law of the state of
California, (ii) may grant any remedy or relief that a court of
the state of California could order or grant within the scope
hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award
recovery of all costs and fees, to impose sanctions and to take
such other actions as they deem necessary to the same extent a
judge could pursuant to the Federal Rules of Civil Procedure, the
California Rules of Civil Procedure or other applicable law. Any
Dispute in which the amount in controversy is $5,000,000 or less
shall be decided by a single arbitrator who shall not render an
award of greater than $5,000,000 (including damages, costs, fees
and expenses). By submission to a single arbitrator, each party
expressly waives any right or claim to recover more than
$5,000,000. Any Dispute in which the amount in controversy
exceeds $5,000,000 shall be decided by majority vote of a panel
of three arbitrators provided however, that all three arbitrators
must actively participate in all hearings and deliberations.
(e) Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy
exceeds $25,000,000, the arbitrators shall be required to make
specific, written findings of fact and conclusions of law. In
such arbitration's (i) the arbitrators shall not have the power
to make any award which is not supported by substantial evidence
or which is based on legal error, (ii) an award shall not be
binding upon the parties unless the findings of fact are
supported by substantial evidence and the conclusions of law are
not erroneous under the substantive law of the state of
California, and (iii) the parties shall have in addition to the
grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of
(A) whether the findings of fact rendered by the arbitrators are
supported by substantial evidence, and (B) whether the
conclusions of law are erroneous under the substantive law of the
state of California. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is
supported by substantial evidence and not based on legal error
under the substantive law of the state of California.
(f) Real Property Collateral: Judicial Reference.
Notwithstanding anything herein to the contrary, no Dispute shall
be submitted to arbitration if the Dispute concerns indebtedness
secured directly or indirectly, in whole or in part, by any real
property unless (i) the holder of the mortgage, lien or security
interest specifically elects in writing to proceed with the
arbitration, or (ii) all parties to the arbitration waive any
rights or benefits that might accrue to them by virtue of the
single action rule statute of California, thereby agreeing that
all indebtedness and obligations of the parties, and all
mortgages, liens and security interests securing such
indebtedness and obligations, shall remain fully valid and
enforceable. If any such Dispute is not submitted to
arbitration, the Dispute shall be referred to a referee in
accordance with California Code of Civil Procedure Section 638 et
seq., and this general reference agreement is intended to be
specifically enforceable in accordance with said Section 638. A
referee with the qualifications required herein for arbitrators
shall be selected pursuant to the AAA's selection procedures.
Judgment upon the decision rendered by a referee shall be entered
in the court in which such proceeding was commenced in accordance
with California Code of Civil Procedure Sections 644 and 645.
(g) Miscellaneous. To the maximum extent practicable, the AAA,
the arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing
of the Dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or
results thereof, except for disclosures of information by a party
required in the ordinary course of its business, by applicable
law or regulation, or to the extent necessary to exercise any
judicial review rights set forth herein if more than one
agreement for arbitration by or between the parties potentially
applies to a Dispute, the arbitration provision most directly
related to the Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive
termination, amendment or expiration of any of the Documents or
any relationship between the parties.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of June 30, 1999.
By: ss/ Xxxxxx X. Xxxx
XXXXXX X. XXXX
