DESCRIPTION - Guaranty between Wells Fargo Bank and Robert S. Cope dated
May 12, 1997.
WELLS FARGO BANK
GUARANTY
TO: WELLS 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 WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Bank"), and for other valuable consideration, the
undersigned ROBERT S. COPE ("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
in connection with that certain promissory note dated as of May 12, 1997.
executed by Borrowers and payable to the order of Bank in the principal
sum of $750,000.00, together with all extensions, renewals and/or
modifications thereof (which Indebtedness in connection with said
promissory note and all such extensions, renewals and/or modifications
shall be referred to herein as the "Note Indebtedness"). 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. LIABILITY; OBLIGATION UNDER OTHER GUARANTIES. Any obligations
incurred or to be incurred by any of the Borrowers in addition to the Note
Indebtedness shall not modify or otherwise affect the obligations or
liability of Guarantor hereunder. 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 as-sign 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 2 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 (t) 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 May 12,1997.
Ss/ Robert S. Cope
ROBERT S. COPE