EXHIBIT 10.16
Sanwa
Bank
California
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 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
other 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 superceded 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.
▇. ▇▇▇▇▇▇'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,
▇. ▇▇▇▇▇▇'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 collateral securing any
Indebtedness or any guaranty thereof;
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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 nonpayment 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 hereinafter 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 arid 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 plan 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. Guarantor to provide: (i) Not later than April 1st of
each year, a copy of the personal financial statement of the Guarantor for
such year, which statement shall be prepared by the Guarantor; and (ii)
within 10 days of filing but not later than October 31st of each year, a copy
of the Guarantor's federal income tax return 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 previsions 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 sign" 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 arid
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
& 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, nonbinding 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 find 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 matte 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 ▇▇▇▇▇, 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 shove
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(1) or 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 ▇▇▇▇▇, 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 panics 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 Office, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
26. Maximum Principal Liability. THE MAXIMUM PRINCIPAL LIABILITY UNDER THIS
GUARANTY is the amount of $5,000,000.00, plus interest at the rate(s)
applicable to any Indebtedness as set forth in the paragraph herein entitled
"Guaranty" and the expenses enumerated in the paragraph herein entitled
"Attorneys' Fees".
This Guaranty is made as of 4-19-96, which shall be the date of this Guaranty.
Executed by the undersigned Guarantor as of the date set forth above.
GUARANTOR:
▇▇▇▇▇ ▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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