ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (j.3)
GUARANTY
Bloomington, Minnesota
December 21, 2001
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of and to induce financial
accommodations of any kind, with or without security, given or to be given or
continued at any time and from time to time by SPECTRUM COMMERCIAL SERVICES
Company (hereinafter called the "Purchaser") to or for the account of Mobility
Concepts, Inc., a Wisconsin corporation, (hereinafter called the "Borrower"),
the undersigned absolutely and unconditionally guarantees to the Purchaser the
full and prompt payment when due, whether at maturity or earlier by reasons of
acceleration or otherwise, of any and all indebtedness, obligations and
liabilities of the Borrower (and any and all successors of the Borrower) to the
Purchaser and also to others to the extent of their participations granted to or
interests therein created or acquired for them by the Purchaser, now or
hereafter existing, absolute or contingent, independent, joint, several or joint
and several, secured or unsecured, due or to become due, contractual or tortious
liquidated or unliquidated, arising by assignment or otherwise, including
without limitation all indebtedness, obligations and liabilities owed by the
Borrower (and any and all successors of the Borrower) as a member of any
partnership, syndicate association or other group, and whether incurred by the
Borrower (or any successor of the Borrower) as principal, surety, endorser,
guarantor, accommodation party or otherwise (hereinafter collectively referred
to as the "Indebtedness"); and the undersigned agrees to pay on demand all of
the Purchaser's fees, costs, expenses and reasonable attorneys' fees in
connection with the Indebtedness, and security therefor, and this guaranty, plus
interest on such amounts at the highest rate then applicable to any of the
Indebtedness.
The Purchaser may at any time and from time to time, without consent of
or notice to the undersigned, without incurring responsibility to the
undersigned, without releasing, impairing or affecting the liability of the
undersigned hereunder, upon or without any terms or conditions, and in whole or
in part: (1) sell, pledge, surrender, compromise, settle, release, renew,
subordinate, extend, alter, substitute, exchange, change, modify or otherwise
dispose of or deal with in any manner and in any order any Indebtedness, any
evidence thereof, or any security or other guaranty therefor; (2) accept any
security for or other guarantor of any Indebtedness; (3) fail, neglect or omit
to obtain, realize upon or protect any Indebtedness or any security therefor, to
exercise any lien upon or right to any money, credit or property toward the
liquidation of the Indebtedness, or to exercise any other right against the
Borrower, the undersigned, any other guarantor or any other person; and (4)
apply any payments and credits to the Indebtedness in any manner and in any
order. No act, omission or thing, except full payment and discharge of the
Indebtedness, which but for this provision could act as a release or impairment
of the liability of the undersigned hereunder, shall in any way release, impair
or otherwise affect the liability of the undersigned hereunder, and the
undersigned waives any and all defenses of the Borrower pertaining to the
Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign
this or any other guaranty shall not release, impair or affect the liability of
the undersigned hereunder. This guaranty is a primary obligation of the
undersigned and the Purchaser shall not be required to first resort for payment
of the Indebtedness to the Borrower or any other person, their properties or
estates, or any security or other rights or remedies whatsoever. The undersigned
shall be and remain liable for any deficiency remaining after foreclosure of any
mortgage or security interest securing the Indebtedness, whether or not the
liability of the Borrower or any other person for such deficiency is discharged
pursuant to statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to
and shall be cumulative with all other liabilities of the undersigned to the
Purchaser, as guarantor or otherwise, without any limitations as to amount,
unless the writing evidencing or creating such other liability specifically
provides to the contrary. If any payment applied by the Purchaser to the
Indebtedness is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including without limitation the bankruptcy, insolvency
or reorganization of the Borrower or any other person), the Indebtedness to
which such payment was applied shall for the purpose of this guaranty be deemed
to have continued in existence, notwithstanding such application, and this
guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.
The undersigned waives: (1) notice of acceptance of this guaranty and
of the creation and existence of the Indebtedness; (2) presentment, demand for
payment, notice of dishonor, notice of nonpayment, and protest of any instrument
evidencing the
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Indebtedness; and (3) all other demands and notices to the undersigned or any
other person and all other actions to establish the liability of the undersigned
hereunder. The undersigned consents to the personal jurisdiction of the state
and federal courts located in the State of Minnesota in connection with any
controversy related to this guaranty, waives any argument that venue in such
forums is not convenient, and agrees that any litigation initiated by the
undersigned against the Purchaser in connection with this guaranty shall be
venued in either the District Court of Dakota or Hennepin County, Minnesota, or
the United States District Court, District of Minnesota.
All property of the undersigned, now or hereafter in the possession,
control or custody of or in transit to the Purchaser for any purpose, including
without limitation the balance of every account of the undersigned with and each
claim of the undersigned against the Purchaser, shall be subject to a lien and
security interest in favor of the Purchaser, as security for all liabilities of
the undersigned to the Purchaser, and shall be subject to be set off against any
and all such liabilities, and the Purchaser may at any time and from time to
time at its option and without notice appropriate and apply any such property
toward the payment of any and all such liabilities. The undersigned agrees to
promptly provide the Purchaser from time to time with financial statements of
the undersigned, in form and substance acceptable to the Purchaser, at least
once every 12 months and as otherwise requested by the undersigned agrees to
promptly provide the Purchaser, from time to time with such other information
respecting the condition (financial and otherwise), business and property of the
undersigned as the Purchaser may request, in form and substance acceptable to
the Purchaser, and will provide Purchaser prompt notice of any subsequent
substantial change in such financial condition. The undersigned hereby grants to
Purchaser its consent and authorization to contact consumer and commercial
credit reporting agencies as well as any other references disclosed by such
agencies (including employment history). Purchaser may also contact all
references of any kind (whether or not disclosed by credit agencies or provided
by the undersigned) to verify any information provided to Purchaser and any such
reference is authorized and instructed to fully release and discuss any
information requested by Purchaser.
The undersigned waives all claims, rights and remedies which the
undersigned may now have or hereafter acquire against any person at any time now
or hereafter liable for payment of any of the Indebtedness and as to any
collateral security, including but not limited to all claims, rights and
remedies of contribution, indemnification, exoneration, reimbursement, recourse
and subrogation, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise, until the
Indebtedness has been fully paid. No waiver of any rights hereunder, and no
modification or amendment of this guaranty shall be effective unless the same is
in writing duly executed by the Purchaser, and each such waiver, if any, shall
apply only with respect to the specific instance involved and shall not impair
or affect the rights of the Purchaser or the provisions of this guaranty in any
other respect at any other time. This guaranty shall continue until written
notice of revocation of this guaranty, executed by the undersigned, has been
received by the Purchaser; provided, no revocation of this guaranty shall affect
in any manner any liability of the undersigned under this guaranty with respect
to Indebtedness arising before the Purchaser receives such written notice of
revocation, and the sole effect of revocation of this guaranty shall be to
exclude from this guaranty Indebtedness thereafter arising which is unconnected
with Indebtedness theretofore arising or transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of
this guaranty shall not affect other lawful provisions and applications hereof
and to this end the provisions of this guaranty are declared to be severable.
This guaranty shall bind the undersigned and the heirs, representatives,
successors and assigns of the undersigned, and of each of them respectively, and
shall benefit the Purchaser, its successors and assigns. If other guaranties of
any part of the Indebtedness exist, neither the existence of nor payment on any
other guaranty shall be effective to modify, reduce or discharge the
undersigned's liability hereunder. If more than one person are guaranteeing the
obligations created hereby, then the liability created hereby shall be deemed
joint and several. This guaranty shall be governed by and construed in
accordance with the laws of the State of Minnesota.
(continued on next page)
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THE UNDERSIGNED REPRESENTS, CERTIFIES, WARRANTS AND AGREES THAT THE UNDERSIGNED
HAS READ ALL OF THIS GUARANTY AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS
GUARANTY. THE UNDERSIGNED ALSO AGREES THAT COMPLIANCE BY THE PURCHASER WITH THE
EXPRESS PROVISIONS OF THIS GUARANTY SHALL CONSTITUTE GOOD FAITH AND SHALL BE
CONSIDERED REASONABLE FOR ALL PURPOSES.
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[signature of Xxxxxx X. Xxxx
STATE OF )
-------------------- ) ss.
COUNTY OF )
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On the ______________ day of _____________________________, 2001, before me
personally came ______________________________________________ to me known to be
the individual____ described in and who executed the above Guaranty and
acknowledged to me that ______he_____ executed the same as h____ free act and
deed.
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