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EXHIBIT 10.48
FORM OF
CONTINUING GUARANTY
The
undersigned, _____________________________, an individual
(herein
called "Guarantor"), at the solicitation of SYNTAX GROUPS
CORPORATION, a
California corporation, and SYNTAX CORPORATION, a Nevada
corporation (herein,
individually and collectively, called "Borrower"), requests
PREFERRED BANK, a
California banking corporation (herein called "Lender"), to extend
Credit to
Borrower. In order to induce Lender to extend Credit to Borrower,
and in
consideration of Credit heretofore, now or hereafter granted to
Borrower by
Lender, Guarantor agrees as follows:
1. The
term "Credit" is used throughout this Continuing Guaranty
("Guaranty") in its most comprehensive sense and means and
includes, without
limitation, any and all loans, advances, debts, obligations and
liabilities of
any kind or nature owed by Borrower to Lender, heretofore, now, or
hereafter
made, incurred or created, arising from and/or evidenced by the
Promissory Note
Variable Rate dated as of December 1, 2006, as amended, between
Borrower and
Lender ("Note"), whether due or not due, absolute or contingent,
liquidated or
unliquidated, determined or undetermined, secured or unsecured,
whether on
original, renewed, extended or revised terms (including, without
limitation,
those evidenced by new or additional instruments or agreements or
those changing
the applicable rate of interest or which release any obligor with
respect
thereto), whether principal, interest, fees, or expenses, whether
Borrower may
be liable individually or jointly with others, whether recovery
upon such
indebtedness may be or hereafter becomes barred by any statute of
limitations,
and whether such indebtedness may be or hereafter becomes invalid
or otherwise
unenforceable. In the event a petition under the United States
Bankruptcy Code
is filed by or against Borrower, the term "Borrower" shall also
mean and include
Borrower in its status as a debtor, debtor-in-possession and/or
reorganized
debtor under the United States Bankruptcy Code.
2. (a) If
there is more than a single entity or person included in the
terms "Guarantor" or "Borrower," respectively, each reference
herein to such
terms shall mean any and all, and one or more of such entities and
persons both
jointly and severally, and (b) if more than one person or entity
executes this
Guaranty, the obligations and liabilities hereunder of Guarantors
are and shall
be both joint and several. If Borrower is a corporation,
partnership, limited
liability company or association, each reference herein to the term
"Borrower"
shall include any successor entity to Borrower. if there is more
than one
guaranty of the obligations of Borrower, the liabilities of all
Guarantors are
joint and several. As used in this Guaranty, neuter terms include
the masculine
and feminine, and vice versa.
3.
Guarantor's liability hereunder shall be limited to Two Million
Dollars
($2,000,000.00). In addition to any liability hereunder, Guarantor
agrees to
bear and be liable to Lender for the interest and expenses
enumerated in
paragraph 21 hereof. Notwithstanding the foregoing, Lender, at its
discretion,
may allow Credit to exceed Guarantor's maximum liability hereunder.
Any payment
by Guarantor shall not reduce the maximum obligation of Guarantor
hereunder
unless written notice to that effect is actually received by Lender
at or prior
to the time of such payment. Any payment received by Lender from
Borrower, from
any other person or from proceeds of collateral granted by Borrower
or any other
person shall not reduce Guarantor's maximum liability
hereunder.
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4. Subject
to any maximum dollar limitation on Guarantor's liability as
may be specified in this Guaranty. Guarantor unconditionally
guarantees and
agrees to pay to Lender, on demand, in lawful money of the United
States of
America, an amount equal to the amount of the Credit, and to
otherwise perform
any obligations of Borrower undertaken pursuant to any Credit. This
Guaranty is
a guaranty of payment and not of collection. No payment received by
Lender from
Borrower or any other person or from proceeds of collateral granted
by Borrower
or any other person shall reduce Guarantor's maximum liability
hereunder.
5. Either
before or after revocation hereof, Guarantor authorizes Lender
at its sole discretion, with or without notice, and without
affecting
Guarantor's continuing liability hereunder, from time to time to
(a) change the
time or manner of payment of any Credit by modification, renewal,
extension,
acceleration or otherwise, (b) amend or change any other provision
of any Credit
including the rate of interest thereon, (c) accept partial payment
on any
Credit, (d) accept new or additional instruments, agreements or
documents
relative to any Credit, (e) release, substitute or add one or more
endorsers,
cosigners or guarantors for any Credit, (f) enter into forbearances
with
Borrower even though the result of such forbearance is to increase
the amount of
accrued and unpaid interest, cost, fees and/or expenses
attributable to the
Credit, (g) amend or modify the terms of any guaranty executed by
a
co-guarantor, including the maximum liability thereunder, (h)
obtain collateral
for the payment of any Credit and/or any guaranty thereof, (i)
waive, release,
exchange, substitute, or modify, in whole or in part, existing,
after-acquired
or later acquired collateral securing payment of the Credit or any
guaranty
therefor on such terms as Lender at its sole discretion shall
determine, (j)
subordinate payment of all or any part of the Credit to other
creditors of
Borrower or other persons on such terms as Lender deems
appropriate, (k) apply
any sums received from Borrower, any other guarantor, endorser or
cosigner or
from the sale or collection of collateral or its proceeds to any
indebtedness
whatsoever in any order and regardless of whether or not such
indebtedness
is-guaranteed hereby, is secured by collateral, or is due and
payable, (l)
without limiting the foregoing, apply any sums received from
Guarantor or from
the sale of collateral granted by Guarantor to any, all, or any
portion of the
Credit in any order regardless of whether or not the Credit is
secured by
collateral or is due and payable, and (m) exercise any right or
remedy it may
have with respect to any Credit or any collateral securing any
Credit, this
Guaranty or any other guaranty, including, without limitation,
bidding and
purchasing at any sale of any such collateral, and compromising,
collecting or
otherwise liquidating any collateral or any Credit.
6.
Guarantor acknowledges that Guarantor may have certain rights
under
applicable law which, if not waived by Guarantor, might provide
Guarantor with
defenses against Guarantors' liability under this Guaranty. Among
those rights,
are certain rights of subrogation, reimbursement, indemnification
and
contribution, and rights provided in sections 2787 to 2855,
inclusive, of the
California Civil Code. Guarantor waives all of Guarantor's rights
of
subrogation, reimbursement, indemnification, and contribution, and
any other
rights and defenses that are or may become available to Guarantor
by reason of
any or all of California Civil Code sections 2787 to 2855,
inclusive, including,
without limitation, Guarantor's rights:
(a) To require Lender to notify Guarantor of any default by
Borrower, provide Guarantor with notice of any sale or other
disposition of
security for any Credit, disclose information with respect to the
Credit,
Borrower, or any other guarantor, co-signer or endorser, or with
respect to any
collateral:
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(b) That Guarantor's obligation under this Guaranty must be
commensurate with that of Borrower;
(c) To be discharged based upon the absence of any liability of
Borrower, at any time, by virtue of operation of law. or otherwise,
or due to
any other disability or defense of Borrower or any other guarantor,
endorser or
co-signer
(d) To be discharged if any of the terms, conditions or
provisions
of the Credit are altered in any respect;
(e) To be discharged upon acceptance by Lender of anything in
partial satisfaction of the Credit, and/or if Lender designates the
portion of
the Credit to be satisfied;
(f) To be discharged upon any modification of the Credit or the
release by Lender of Borrower or any other guarantor, endorser or
co-signer;
(g) To require Lender to proceed against Borrower, or any other
guarantor, endorser, co-signer, or other person, or to pursue or
refrain from
pursuing any other remedy in Lender's power;
(h) To receive the benefit of or participate in any and all
security
for repayment and/or performance of the Credit;
(i) To have any security for the Credit first applied to satisfy
or
discharge the Credit;
(j) That any arbitration award rendered against Borrower not
constitute an award against Guarantor;
(k) To be discharged based upon any failure by Lender to perfect
or
continue perfection of any lien, use due diligence to collect all
or any part of
any Credit, or if recovery against Borrower becomes barred by any
statute of
limitations, or if Borrower is not liable for any deficiency after
Lender
realizes upon any collateral; and
(l) To be discharged due to the release or discharge of any
collateral for any Credit or guaranty, or relating to the validity,
value or
enforceability of any collateral.
7.
Guarantor also waives all rights and defenses that Guarantor may
have
because the Borrower's debt is secured by real property. This
means, among other
things: (1) Lender may collect from Guarantor without first
foreclosing on any
real or personal property collateral pledged or assigned by
Borrower; (2) If
Lender forecloses on any real property collateral pledged by the
Borrower: (A)
The amount of the debt may be reduced only by the price for which
that
collateral is sold at the foreclosure sale, even if the collateral
is worth more
than the sale price, (B) Lender may collect from Guarantor even if
Lender, by
foreclosing on the real property collateral, has destroyed any
right Guarantor
may have to collect from Borrower. This is an unconditional and
irrevocable
waiver of any rights and defenses Guarantor may have because
Borrower's debt is
secured by real property. These rights and defenses include, but
are not
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limited to any rights or defenses directly or indirectly based upon
Section
580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.
8.
Guarantor also waives all rights and defenses arising out of an
election of remedies by Lender, even though that election of
remedies, such as a
nonjudicial 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 the California Code
of Civil
Procedure or otherwise.
9.
Guarantor waives all presentments, demands for performance, notices
of
nonperformance, protests, notices of protest, notices of dishonor,
notices of
acceptance, notices of the existence, creation or increase of any
new or
additional credit, notice of sale in regard to judicial or
non-judicial
foreclosure of real or personal property collateral and all other
notices and
demands of any kind or nature whatsoever except as expressly set
forth herein.
10.
Notwithstanding any foreclosure of the lien of any security
agreements, deeds of trust, mortgages or other security
instruments, with
respect to the Credit or any other guaranty, whether by the
exercise of the
power of sale contained therein, by any action for judicial
foreclosure, or by
any acceptance of a deed or other transfer in lieu of foreclosure,
whether or
not such method of foreclosure or transfer in lieu of foreclosure
was for a
consideration equal to or greater than the fair market value of the
security
property, Guarantor shall remain bound under this Guaranty for the
obligations
of Borrower to Lender and shall be liable to Lender for any and all
of the
Credit remaining unpaid after any such foreclosure.
11.
Guarantor represents and warrants to Lender that: (a) Lender has
made
no representation to Guarantor in regard to Borrower
