GENERAL CONTINUING GUARANTY
Exhibit 10.1
This
GENERAL CONTINUING GUARANTY
(this “Guaranty”), dated as of October 4,
2017, is executed and delivered by NOVUME SOLUTIONS, INC., a Delaware corporation
(“Guarantor”),
in favor of XXXXX FARGO BANK,
NATIONAL ASSOCIATION, a national banking association
(“WFB”), in
light of the following:
WHEREAS, Global Technical Services,
Inc., a Texas Corporation (“Client”) and WFB have entered into
that certain Account Purchase Agreement, dated as of August 22,
2012 (as amended, modified, supplemented, extended, renewed,
restated or replaced, the “Account Purchase
Agreement”);
WHEREAS, Guarantor is an equity owner of
Client and, as such, will benefit by virtue of the financial
accommodations extended to Client by WFB; and
WHEREAS, in order to induce WFB to enter
into that certain Eighth Amendment, Waiver and Consent to Account
Purchase Agreement, dated of even date herewith, and to purchase
Acceptable Accounts and to extend other financial accommodations to
Client pursuant to the Account Purchase Agreement, and in
consideration thereof, and in consideration of the purchase of
Acceptable Accounts heretofore or hereafter made by WFB from
Client, or other financial accommodations heretofore or hereafter
extended by WFB to Client, pursuant to the Account Purchase
Agreement or the other agreements delivered in connection therewith
(the “Other
Agreements”), Guarantor has agreed to guaranty the
Guarantied Obligations.
NOW, THEREFORE, in consideration of the
foregoing, Guarantor hereby agrees as follows:
1. Definitions
and Construction.
(a) Definitions. Capitalized terms
used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Account Purchase Agreement. The
following terms, as used in this Guaranty, shall have the following
meanings:
“ACH Transactions” means any cash
management or related services (including the Automated Clearing
House processing of electronic fund transfers through the direct
Federal Reserve Fedline system) provided by a Bank Product Provider
for the account of Client.
“Bank Product” means any financial
accommodation extended to Client by a Bank Product Provider
including: (a) credit cards, (b) credit card processing services,
(c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash
management, including controlled disbursement, accounts or
services, or (g) transactions under Hedge Agreements.
“Bank Product Agreements” means
those agreements entered into from time to time by any Client with
a Bank Product Provider in connection with the obtaining of any of
the Bank Products.
“Bank
Product Provider” means Xxxxx Fargo Bank, National
Association or any of its affiliates.
“Client” has the meaning set forth
in the recitals to this Guaranty.
“Account Purchase Agreement” has
the meaning set forth in the recitals to this
Guaranty.
“Guarantied Obligations” means all
now or hereafter existing or arising indebtedness, liabilities and
obligations owing by Client to WFB and any Bank Product Provider
under the Account Purchase Agreement, any of the Other Agreements
or any Bank Product Agreement, whether for principal, interest
(including all interest that accrues after the commencement of any
Insolvency Proceeding irrespective of whether a claim therefor is
allowed in such case or proceeding), discount, charges, fees,
expenses or otherwise, and also includes any and all expenses
(including reasonable counsel fees and expenses) incurred by WFB in
enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, Guarantied Obligations shall include
all amounts that constitute part of the Guarantied Obligations and
would be owed by the Client to WFB and any Bank Product Provider
under the Account Purchase Agreement, any of the Other Agreements
or any Bank Product Agreement but for the fact that they are
unenforceable or not allowable, including due to the existence of a
bankruptcy, reorganization or similar proceeding involving Client
or any other guarantor.
“Guarantor” has the meaning set
forth in the preamble to this Guaranty.
“Guaranty” has the meaning set
forth in the preamble to this Guaranty.
“Hedge Agreement” means any and all
agreements, or documents now existing or hereafter entered into by
Client that provide for an interest rate, credit, commodity or
equity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or
similar transactions, for the purpose of hedging such
Client’s exposure to fluctuations in interest or exchange
rates, loan, credit exchange, security, or currency valuations or
commodity prices.
“Person” means and includes an
individual, a corporation, a partnership, a joint venture, a
limited liability company or partnership, a trust, an
unincorporated association, a Governmental Authority or any other
organization or entity.
“Record” means information that is
inscribed on a tangible medium or which is stored in an electronic
or other medium and is retrievable in perceivable
form.
“Voidable Transfer” has the meaning
set forth in Section 9 of this
Guaranty.
(b) Construction. Unless the
context of this Guaranty clearly requires otherwise, references to
the plural include the singular, references to the singular include
the plural, the part includes the whole, the terms
“includes” and “including” are not
limiting, and the term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and other similar terms in this Guaranty
refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Section, subsection, clause, schedule,
and exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth
herein). Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against WFB or Client,
whether under any rule of construction or otherwise. On the
contrary, this Guaranty has been reviewed by all parties and shall
be construed and interpreted according to the ordinary meaning of
the words used so as to accomplish fairly the purposes and
intentions of Guarantor and WFB. Any reference herein to the
satisfaction or payment in full of the Guarantied Obligations shall
mean the payment in full in cash (or cash collateralization in
accordance with the terms of the Account Purchase Agreement or any
Other Agreement) of all Guarantied Obligations other than
contingent indemnification Guarantied Obligations and other than
any obligations owing by Client to any Bank Product Provider that,
at such time, are allowed by the applicable Bank Product Provider
to remain outstanding and are not required to be repaid or cash
collateralized pursuant to the provisions of the Account Purchase
Agreement or any Other Agreement and the full and final termination
of any commitment to extend any financial accommodations under the
Account Purchase Agreement and any Other Agreement. Any reference
herein to any Person shall be construed to include such
Person’s successors and assigns. Any requirement of a writing
contained herein shall be satisfied by the transmission of a Record
and any Record transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information
contained therein. The captions and headings are for convenience of
reference only and shall not affect the construction of this
Guaranty.
2. Guarantied
Obligations. Guarantor hereby irrevocably and
unconditionally guaranties to WFB, for the benefit of itself and
the Bank Product Providers, as and for its own debt, until the
final and indefeasible payment in full thereof, in cash, has been
made, (a) the due and punctual payment of the Guarantied
Obligations, when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of
Guarantor that the guaranty set forth herein shall be a guaranty of
payment and not a guaranty of collection; and (b) the punctual
and faithful performance, keeping, observance, and fulfillment by
Client of all of the agreements, conditions, covenants, and
obligations of Client contained in the Account Purchase Agreement
and in each of the Other Agreements.
3. Continuing
Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the
Guarantied Obligations, changing the interest rate, discount rate,
any charge or fee, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in
part. To the maximum extent permitted by law, Guarantor hereby
waives any right to revoke this Guaranty as to future Guarantied
Obligations. If such a revocation is effective notwithstanding the
foregoing waiver, Guarantor acknowledges and agrees that
(a) no such revocation shall be effective until written notice
thereof has been received by WFB, (b) no such revocation shall
apply to any Guarantied Obligations in existence on the date of
receipt by WFB of such written notice (including any subsequent
continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions
thereof), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of WFB in
existence on the date of such revocation, (d) no payment by
Guarantor, Client, or from any other source, prior to the date of
WFB’s receipt of written notice of such revocation shall
reduce the maximum obligation of Guarantor hereunder, and
(e) any payment by Client or from any source other than
Guarantor subsequent to the date of such revocation shall first be
applied to that portion of the Guarantied Obligations as to which
the revocation is effective and which are not, therefore,
guarantied hereunder, and to the extent so applied shall not reduce
the maximum obligation of Guarantor hereunder.
4. Performance Under
this Guaranty. In the event that Client fails to make any
payment of any Guarantied Obligations, on or prior to the due date
thereof, or if Client shall fail to perform, keep, observe, or
fulfill any other obligation referred to in clause (b) of Section 2 of this Guaranty in
the manner provided in the Account Purchase Agreement or any of the
Other Agreements, Guarantor immediately shall cause, as applicable,
such payment in respect of the Guarantied Obligations to be made or
such obligation to be performed, kept, observed, or
fulfilled.
5. Primary
Obligations. This Guaranty is a primary and original
obligation of Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing
guaranty of payment and performance which shall remain in full
force and effect without respect to future changes in conditions.
Guarantor hereby agrees that it is directly, jointly and severally
with any other guarantor of the Guarantied Obligations, liable to
WFB, for the benefit of itself and the Bank Product Providers, that
the obligations of Guarantor hereunder are independent of the
obligations of Client or any other guarantor, and that a separate
action may be brought against Guarantor, whether such action is
brought against Client or any other guarantor or whether Client or
any other guarantor is joined in such action. Guarantor hereby
agrees that its liability hereunder shall be immediate and shall
not be contingent upon the exercise or enforcement WFB or any Bank
Product Provider of whatever remedies they may have against Client
or any other guarantor, or the enforcement of any lien or
realization upon any security by WFB or any Bank Product Provider.
Guarantor hereby agrees that any release which may be given by WFB
to Client or any other guarantor, or with respect to any property
or asset subject to a Lien, shall not release Guarantor. Guarantor
consents and agrees that neither WFB nor any Bank Product Provider
shall be under any obligation to marshal any property or assets of
Client or any other guarantor in favor of Guarantor, or against or
in payment of any or all of the Guarantied
Obligations.
6. Waivers.
(a) To the fullest
extent permitted by applicable law, Guarantor hereby waives:
(i) notice of acceptance hereof; (ii) notice of the
purchase of any Acceptable Accounts or other financial
accommodations made or extended under the Account Purchase
Agreement, or the creation or existence of any Guarantied
Obligations; (iii) notice of the amount of the Guarantied
Obligations, subject, however, to Guarantor’s right to make
inquiry of WFB to ascertain the amount of the Guarantied
Obligations at any reasonable time; (iv) notice of any adverse
change in the financial condition of Client or of any other fact
that might increase Guarantor’s risk hereunder;
(v) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument among the Account Purchase
Agreement and any of the Other Agreements; (vi) notice of any
default or Event of Default under the Account Purchase Agreement
and any of the Other Agreements; (vii) notice of intent to
accelerate and notice of acceleration; (viii) notice of any of the
events or circumstances enumerated in Section7; and (ix) all
other notices (except if such notice is specifically required to be
given to Guarantor under this Guaranty or any of the Other
Agreements to which Guarantor is a party) and demands to which
Guarantor might otherwise be entitled.
(b) To the fullest
extent permitted by applicable law, Guarantor hereby waives the
right by statute or otherwise to require WFB or any Bank Product
Provider to institute suit against Client or any other guarantor or
to exhaust any rights and remedies which WFB or any Bank Product
Provider has or may have against Client or any other guarantor. In
this regard, Guarantor agrees that it is bound to the payment of
each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if the Guarantied Obligations were
directly owing to WFB or the Bank Product Providers, as applicable,
by Guarantor. Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense
that the Guarantied Obligations shall have been fully and finally
performed and indefeasibly paid in full in cash, to the extent of
any such payment) of Client or by reason of the cessation from any
cause whatsoever of the liability of Client in respect
thereof.
(c) To the fullest
extent permitted by applicable law, Guarantor hereby waives:
(i) any right to assert against WFB or any Bank Product
Provider, any defense (legal or equitable), set-off, counterclaim,
or claim which Guarantor may now or at any time hereafter have
against Client or any other party liable to WFB or any Bank Product
Provider; (ii) any defense, set-off, counterclaim, or claim,
of any kind or nature, arising directly or indirectly from the
present or future lack of perfection, sufficiency, validity, or
enforceability of the Guarantied Obligations or any security
therefor; (iii) any right or defense arising by reason of any
claim or defense based upon an election of remedies by WFB or any
Bank Product Provider including any defense based upon an
impairment or elimination of Guarantor’s rights of
subrogation, reimbursement, contribution, or indemnity of Guarantor
against Client or other guarantors or sureties; (iv) the
benefit of any statute of limitations affecting Guarantor’s
liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations
applicable to the Guarantied Obligations shall similarly operate to
defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.
(d) Until the
Guarantied Obligations have been paid in full in cash,
(i) Guarantor hereby postpones and agrees not to exercise any
right of subrogation Guarantor has or may have as against Client
with respect to the Guarantied Obligations; (ii) Guarantor
hereby postpones and agrees not to exercise any right to proceed
against Client or any other Person now or hereafter liable on
account of the Obligations for contribution, indemnity,
reimbursement, or any other similar rights (irrespective of whether
direct or indirect, liquidated or contingent); and
(iii) Guarantor hereby postpones and agrees not to exercise
any right it may have to proceed or to seek recourse against or
with respect to any property or asset of Client or any other Person
now or hereafter liable on account of the Obligations.
Notwithstanding anything to the contrary contained in this
Guaranty, Guarantor shall not exercise any rights of subrogation,
contribution, indemnity, reimbursement or other similar rights
against, and shall not proceed or seek recourse against or with
respect to any property or asset of, Client or any other guarantor
(including after payment in full of the Guarantied Obligations) if
all or any portion of the Obligations have been satisfied in
connection with an exercise of remedies in respect of the capital
stock of Client or such other guarantor whether pursuant to the
Account Purchase Agreement or otherwise.
(e) WITHOUT LIMITING
THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN
THIS GUARANTY, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT
OF AN ELECTION OF REMEDIES BY WFB OR ANY BANK PRODUCT PROVIDER,
EVEN THOUGH SUCH ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL
FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED
OBLIGATIONS, HAS DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION
AND REIMBURSEMENT AGAINST CLIENT BY THE OPERATION OF APPLICABLE
LAW.
(f) Without limiting
the generality of any other waiver or other provision set forth in
this Guaranty, Guarantor hereby also agrees to the following
waivers:
(i) WFB’s right
to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of the Guarantied
Obligations, the Account Purchase Agreement or any of the Other
Agreements. Guarantor agrees that WFB’s rights under this
Guaranty shall be enforceable even if Client had no liability at
the time of execution of the Other Agreements or the Guarantied
Obligations are unenforceable in whole or in part, or Client ceases
to be liable with respect to all or any portion of the Guarantied
Obligations.
(ii) Guarantor
agrees that WFB’s rights under the Account Purchase Agreement
and the Other Agreements will remain enforceable even if the amount
guaranteed hereunder is larger in amount and more burdensome than
that for which Client is responsible. The enforceability of this
Guaranty against Guarantor shall continue until all sums due under
the Account Purchase Agreement and the Other Agreements have been
paid in full and shall not be limited or affected in any way by any
impairment or any diminution or loss of value of any security or
collateral for Client’s obligations under the Account
Purchase Agreement or the Other Agreements, from whatever cause,
the failure of any security interest in any such security or
collateral or any disability or other defense of Client, any other
guarantor of Client’s obligations under any of the Other
Agreements, any pledgor of collateral for any Person’s
obligations to WFB or any other Person in connection with the
Account Purchase Agreement or the Other Agreements.
(iii) Guarantor
waives the right to require WFB to (A) proceed against Client,
any guarantor of Client’s obligations under the Account
Purchase Agreement or any of the Other Agreements, any other
pledgor of collateral for any Person’s obligations to WFB or
any other Person in connection with the Guarantied Obligations,
(B) proceed against or exhaust any other security or
collateral WFB may hold, or (C) pursue any other right or
remedy for Guarantor’s benefit, and agrees that WFB may
exercise its right under this Guaranty without taking any action
against Client, any other guarantor of Client’s obligations
under the Account Purchase Agreement or the Other Agreements, any
pledgor of collateral for any Person’s obligations to WFB or
any other Person in connection with the Guarantied Obligations, and
without proceeding against or exhausting any security or collateral
WFB holds.
(iv) Guarantor
waives, and agrees that its liability hereunder shall not be
affected by, any neglect, delay, omission, failure, or refusal of
WFB to (A) exercise or properly or diligently exercise any
right or remedy with respect to any or all of the Guarantied
Obligations or the collection thereof or any security interests or
liens or other security for or guaranty of the Guarantied
Obligations, or any portion thereof, (B) take or prosecute, or
properly or diligently take or prosecute, any action for the
collection of any or all of the Guarantied Obligations against
Client, Guarantor or any other Person in respect of any or all of
the Guarantied Obligations, (C) foreclose or prosecute, or
properly or diligently foreclose or prosecute, any action in
connection with any agreement, document or instrument or
arrangement evidencing, securing, or otherwise affecting all or any
part of the Guarantied Obligations, or (D) mitigate damages or
take any other action to reduce, collect, or enforce the Guarantied
Obligations.
7. Releases.
Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing the obligations of
Guarantor hereunder, WFB or any Bank Product Provider may, by
action or inaction, compromise or settle, shorten or extend any
period of duration or the time for the payment of the Obligations,
or discharge the performance of the Obligations, or may refuse to
enforce the Obligations, or otherwise elect not to enforce the
Obligations, or may, by action or inaction, release all or any one
or more parties to, any one or more of the terms and provisions of
the Account Purchase Agreement or any of the Other Agreements or
may grant other indulgences to Client or any other guarantor in
respect thereof, or may amend or modify in any manner and at any
time (or from time to time) any one or more of the Obligations, the
Account Purchase Agreement or any of the Other Agreements
(including any increase or decrease in the principal amount of any
Obligations or the interest, fees or other amounts that may accrue
from time to time in respect thereof), or may, by action or
inaction, release or substitute the Client or any guarantor, if
any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the
Guarantied Obligations or any other guaranty of the Guarantied
Obligations, or any portion thereof. Guarantor agrees that its
obligations under this Guaranty shall not be released, diminished,
impaired, reduced, or affected by the occurrence of any one or more
of the following events: (a) lack of organizational authority
of Client; (b) any receivership, insolvency, bankruptcy, or
other proceedings affecting Client or its property;
(c) partial or total release or discharge of Client or any
other Person from the performance of any obligation contained in
any instrument or agreement evidencing, governing, or securing all
or any part of the Guarantied Obligations, whether occurring
pursuant to any applicable law or otherwise; (d) any change in
the time, manner, or place of payment of, or in any other term of,
or any increase or decrease in the amount of, all the Guarantied
Obligations, or any portion thereof, or any other amendment or
waiver of any term of, or any consent to departure from any
requirement of, the Account Purchase Agreement or any of the Other
Agreements; (e) the taking or accepting of any collateral
security for all or any part of the Guarantied Obligations, this
Guaranty, or any other guaranty; (f) the taking or accepting
of any other guaranty for all or any part of the Guarantied
Obligations; (g) any failure to
acquire, perfect, or continue any security interest or lien on
Collateral securing all or any part of the Guarantied Obligations
or on any property securing this Guaranty; (h) any
exchange, release, or subordination of any security interest or
lien on any Collateral, or any release, amendment, waiver, or
subordination of any term of any guaranty of the Guarantied
Obligations or any other impairment of any collateral security or
guaranty now or hereafter securing all or any part of the
Guarantied Obligations; (i) any failure to dispose of any
collateral security at any time securing all or any part of the
Guarantied Obligations or this Guaranty in a commercially
reasonable manner or as otherwise may be required by any applicable
law; (j) any merger, reorganization, consolidation, or
dissolution of Client or any other Person at any time liable for
any of the Obligations, any sale, lease, or transfer of any or all
of the assets of Client or any other Person at any time liable for
any of the Obligations, or any change in name, business,
organization, location, composition, structure, or organization of
Client or any other Person at any time liable for any of the
Obligations; (k) any change of control or any other change in
the capitalization or equity interest ownership of Client or any
other Person at any time liable for any of the Obligations;
(l) any invalidity or unenforceability of or defect or
deficiency in the Account Purchase Agreement or any of the Other
Agreements; (m) avoidance or subordination of the Guarantied
Obligations, or any portion thereof, (n) the unenforceability of
all or any part of the Guarantied Obligations against Client
because any interest contracted for, charged, or received in
respect of the Guarantied Obligations exceeds the amount permitted
by any applicable law; (o) any waiver, consent, extension,
forbearance, or granting of any indulgence by WFB with respect to
the Guarantied Obligations or any provision of the Account Purchase
Agreement or any of the Other Agreements; (p) any delay in or
lack of enforcement of any remedies under the Account Purchase
Agreement or any of the Other Agreements);
(q) the act of creating all or any part of the Guarantied
Obligations is ultra xxxxx, or the officers or other
representatives creating all or any part of the Guarantied
Obligations acted in excess of their authority; (r) any
election of remedies by WFB; (s) the Account Purchase
Agreement or any of the Other Agreements were forged; (t) the
election by WFB in any proceeding under the Bankruptcy Code of the
application of Section 1111(b)(2) thereof; (u) any borrowing
or grant of a security interest by Client as debtor-in-possession,
under Section 364 of the Bankruptcy Code; (v) any use by Client
(whether with the consent of WFB or otherwise) of cash collateral
during the pendency of any bankruptcy proceeding; (w) the
making of post-petition loans or any other provision for the
extension of post-petition credit to Client as debtor-in-possession
in any bankruptcy proceedings; (x) the disallowance in bankruptcy
of all or any portion of the claims of WFB for payment of any of
the Guarantied Obligations; or (y) any other circumstance
which might otherwise constitute a legal or equitable discharge or
defense available to Client or Guarantor (other than that the
Guarantied Obligations shall have been indefeasibly paid and
performed in full).
8. No Election.
WFB and the Bank Product Providers shall have the right to seek
recourse against Guarantor to the fullest extent provided for
herein and no election by WFB or any Bank Product Provider to
proceed in one form of action or proceeding, or against any party,
or on any obligation, shall constitute a waiver of WFB’s or
any Bank Product Provider’s right to proceed in any other
form of action or proceeding or against other parties unless WFB,
on behalf of itself or the Bank Product Providers, has expressly
waived such right in writing. Specifically, but without limiting
the generality of the foregoing, no action or proceeding by WFB or
the Bank Product Providers under any document or instrument
evidencing the Guarantied Obligations shall serve to diminish the
liability of Guarantor under this Guaranty except to the extent
that WFB and the Bank Product Providers finally and unconditionally
shall have realized indefeasible payment in full of the Guarantied
Obligations by such action or proceeding.
9. Revival and
Reinstatement. If the incurrence or payment of the
Guarantied Obligations or the obligations of Guarantor under this
Guaranty by Guarantor or the transfer by Guarantor to WFB of any
property of Guarantor should for any reason subsequently be
declared to be void or voidable under any state or federal law
relating to creditors’ rights, including provisions of the
Bankruptcy Code relating to fraudulent conveyances, preferences, or
other voidable or recoverable payments of money or transfers of
property (collectively, a “Voidable Transfer”), and if WFB is
required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of
its counsel, then, as to any such Voidable Transfer, or the amount
thereof that WFB is required or elects to repay or restore, and as
to all reasonable costs, expenses, and attorneys’ fees of WFB
related thereto, the liability of Guarantor automatically shall be
revived, reinstated, and restored and shall exist as though such
Voidable Transfer had never been made.
10. Financial Condition
of Client. Guarantor represents and warrants to WFB and the
Bank Product Providers that Guarantor is currently informed of the
financial condition of Client and of all other circumstances which
a diligent inquiry would reveal and which bear upon the risk of
nonpayment of the Guarantied Obligations. Guarantor further
represents and warrants to WFB and the Bank Product Providers that
Guarantor has read and understands the terms and conditions of the
Account Purchase Agreement and each of the Other Agreements.
Guarantor hereby covenants that it will continue to keep itself
informed of Client’s financial condition, the financial
condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or
nonperformance of the Guarantied Obligations.
11. Payments;
Application. All payments to be made hereunder by Guarantor
shall be made in U.S. Dollars, in immediately available funds, and
without deduction (whether for taxes or otherwise) or offset and
shall be applied to the Guarantied Obligations in accordance with
the terms of the Account Purchase Agreement.
12. Attorneys Fees and
Costs. Guarantor agrees to pay, on demand, all
attorneys’ fees and all other costs and expenses which may be
incurred by WFB in connection with the enforcement of this Guaranty
or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any
security therefor), irrespective of whether suit is
brought.
13. Notices. All
notices and other communications hereunder to WFB shall be in
writing and shall be mailed, sent, or delivered in accordance with
provisions of the Account Purchase Agreement applicable to notices
and other communications thereunder. All notices and other
communications hereunder to Guarantor shall be in writing and shall
be mailed, sent, or delivered in care of Client in accordance with
the provisions of the Account Purchase Agreement applicable to
notices and other communications thereunder.
14. Cumulative
Rights. The rights, powers and remedies provided in this
Guaranty and in the Account Purchase Agreement and the Other
Agreements are cumulative, may be exercised concurrently, or
separately, may be exercised from time to time and in such order as
WFB shall determine, subject to the provisions of this Guaranty,
and are in addition to, and not exclusive of, the rights, powers,
and remedies provided by existing or future applicable laws.
WFB’s failure or delay to exercise or enforce, in whole or in
part, any right, power or remedy under this Guaranty, the Account
Purchase Agreement or any Other Agreement, shall not constitute a
waiver thereof, nor preclude any other or further exercise
thereof.
15. Severability of
Provisions. In the event any provision of this Guaranty (or
any part of any provision) is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision (or remaining part of the affected
provision) of this Guaranty, but this Guaranty shall be construed
as if such invalid, illegal or unenforceable provision (or part
thereof) had not been contained in this Guaranty, but only to the
extent it is invalid, illegal or unenforceable.
16. Entire Agreement;
Amendments. This Guaranty is intended by WFB and Guarantor
to be a complete, exclusive and final expression of the agreements
contained herein. Neither WFB nor Guarantor shall hereafter have
any rights under any prior agreements pertaining to the matters
addressed by this Guaranty but shall look solely to this Guaranty
for definition and determination of all of their respective rights,
liabilities and responsibilities under this Guaranty. Except as
otherwise provided herein, this Guaranty may not be supplemented,
changed, waived, discharged, terminated, modified or amended,
except by written instrument executed by the parties. THIS GUARANTY
AND THE OTHER AGREEMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
17. Successors and
Assigns. This Guaranty binds and is for the benefit of the
heirs, executors, administrators, successors and assigns of the
parties hereto, except that Guarantor shall not have the right to
assign its rights hereunder or any interest herein without
WFB’s prior written consent.
18. No Third Party
Beneficiary. This Guaranty is solely for the benefit of each
of WFB, each Bank Product Provider, and each of their successors
and assigns and may not be relied on by any other
Person.
19. Governing
Law. This Guaranty
shall be governed by, and construed and interpreted in accordance
with, the law of the State of Texas (the “Applicable State”),
without giving effect to the principles of conflicts of
laws.
20. ARBITRATION.
(a) ARBITRATION. THE PARTIES HERETO
AGREE, UPON DEMAND BY ANY PARTY, WHETHER MADE BEFORE THE
INSTITUTION OF A JUDICIAL PROCEEDING OR NOT MORE THAN 60 DAYS AFTER
SERVICE OF A COMPLAINT, THIRD PARTY COMPLAINT, CROSS-CLAIM,
COUNTERCLAIM OR ANY ANSWER THERETO OR ANY AMENDMENT TO ANY OF THE
ABOVE TO SUBMIT TO BINDING ARBITRATION ALL CLAIMS, DISPUTES AND
CONTROVERSIES BETWEEN OR AMONG THEM (AND THEIR RESPECTIVE
EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS, AND OTHER AGENTS),
WHETHER IN TORT, CONTRACT OR OTHERWISE ARISING OUT OF OR RELATING
IN ANY WAY TO THIS GUARANTY AND ITS NEGOTIATION, EXECUTION,
COLLATERALIZATION, ADMINISTRATION, REPAYMENT, MODIFICATION,
EXTENSION, SUBSTITUTION, FORMATION, INDUCEMENT, ENFORCEMENT,
DEFAULT OR TERMINATION; PROVIDED HOWEVER THAT THE PARTIES AGREE
THAT, NOTWITHSTANDING THE FOREGOING, EACH PARTY RETAINS THE RIGHT
TO PURSUE IN SMALL CLAIMS COURT ANY DISPUTE WITHIN THAT
COURT’S JURISDICTION. IN THE EVENT OF A COURT ORDERED
ARBITRATION, THE PARTY REQUESTING ARBITRATION SHALL BE RESPONSIBLE
FOR TIMELY FILING THE DEMAND FOR ARBITRATION AND PAYING THE
APPROPRIATE FILING FEE WITHIN THE 30 DAYS OF THE ABATEMENT ORDER OR
THE TIME SPECIFIED BY THE COURT. FAILURE TO TIMELY FILE THE DEMAND
FOR ARBITRATION AS ORDERED BY THE COURT WILL RESULT IN THAT
PARTY’S RIGHT TO DEMAND ARBITRATION BEING AUTOMATICALLY
TERMINATED.
(b) GOVERNING RULES. ANY
ARBITRATION PROCEEDING WILL (I) PROCEED IN A LOCATION IN THE
APPLICABLE STATE (AS DEFINED ABOVE) SELECTED BY THE AMERICAN
ARBITRATION ASSOCIATION (“AAA”); (II) BE GOVERNED
BY THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES CODE),
NOTWITHSTANDING ANY CONFLICTING CHOICE OF LAW PROVISION IN ANY OF
THE DOCUMENTS BETWEEN THE PARTIES; AND (III) BE CONDUCTED BY THE
AAA, OR SUCH OTHER ADMINISTRATOR AS THE PARTIES SHALL MUTUALLY
AGREE UPON, IN ACCORDANCE WITH THE AAA’S COMMERCIAL DISPUTE
RESOLUTION PROCEDURES, UNLESS THE CLAIM OR COUNTERCLAIM IS AT LEAST
$1,000,000.00 EXCLUSIVE OF CLAIMED INTEREST, ARBITRATION FEES AND
COSTS IN WHICH CASE THE ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE AAA’S OPTIONAL PROCEDURES FOR LARGE,
COMPLEX COMMERCIAL DISPUTES (THE COMMERCIAL DISPUTE RESOLUTION
PROCEDURES OR THE OPTIONAL PROCEDURES FOR LARGE, COMPLEX COMMERCIAL
DISPUTES TO BE REFERRED TO HEREIN, AS APPLICABLE, AS THE
“RULES”). IF THERE IS ANY
INCONSISTENCY BETWEEN THE TERMS HEREOF AND THE RULES, THE TERMS AND
PROCEDURES SET FORTH HEREIN SHALL CONTROL. ANY PARTY WHO FAILS OR
REFUSES TO SUBMIT TO ARBITRATION FOLLOWING A DEMAND BY ANY OTHER
PARTY SHALL BEAR ALL COSTS AND EXPENSES INCURRED BY SUCH OTHER
PARTY IN COMPELLING ARBITRATION OF ANY DISPUTE.
(c) NO WAIVER OF PROVISIONAL REMEDIES,
SELF-HELP AND FORECLOSURE. THE ARBITRATION REQUIREMENT DOES
NOT LIMIT THE RIGHT OF ANY PARTY BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING TO (I) FORECLOSE AGAINST
REAL OR PERSONAL PROPERTY COLLATERAL; (II) EXERCISE SELF-HELP
REMEDIES RELATING TO COLLATERAL OR PROCEEDS OF COLLATERAL SUCH AS
SETOFF OR REPOSSESSION; OR (III) OBTAIN PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS REPLEVIN, WRIT OF POSSESSION, INJUNCTIVE RELIEF,
ATTACHMENT, GARNISHMENT OR THE APPOINTMENT OF A RECEIVER. THIS
EXCLUSION DOES NOT CONSTITUTE A WAIVER OF THE RIGHT OR OBLIGATION
OF ANY PARTY TO SUBMIT ANY DISPUTE TO ARBITRATION OR REFERENCE
HEREUNDER, INCLUDING THOSE ARISING FROM THE EXERCISE OF THE ACTIONS
DETAILED IN SECTIONS (I), (II) AND (III) OF THIS
PARAGRAPH.
(d) ARBITRATOR QUALIFICATIONS AND
POWERS. ANY ARBITRATION PROCEEDING IN WHICH THE AMOUNT IN
CONTROVERSY IS $5,000,000.00 OR LESS WILL BE DECIDED BY A SINGLE
ARBITRATOR SELECTED ACCORDING TO THE RULES, AND WHO SHALL NOT
RENDER AN AWARD OF GREATER THAN $5,000,000.00. ANY DISPUTE IN WHICH
THE AMOUNT IN CONTROVERSY EXCEEDS $5,000,000.00 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, EXCEPT THAT A SINGLE ARBITRATOR MAY
DECIDE PRE-HEARING DISCOVERY DISPUTES. THE ARBITRATOR(S) WILL BE A
NEUTRAL ATTORNEY LICENSED IN THE APPLICABLE STATE (AS DEFINED
ABOVE) OR A NEUTRAL RETIRED JUDGE OF THE STATE OR FEDERAL JUDICIARY
OF THE APPLICABLE STATE (AS DEFINED ABOVE), IN EITHER CASE WITH A
MINIMUM OF TEN YEARS EXPERIENCE IN THE SUBSTANTIVE LAW APPLICABLE
TO THE SUBJECT MATTER OF THE DISPUTE TO BE ARBITRATED. THE
ARBITRATOR(S) WILL DETERMINE WHETHER OR NOT AN ISSUE IS
ARBITRATABLE AND WILL GIVE EFFECT TO THE STATUTES OF LIMITATION OR
REPOSE IN DETERMINING ANY CLAIM. IN ANY ARBITRATION PROCEEDING THE
ARBITRATOR(S) WILL DECIDE (BY DOCUMENTS ONLY OR WITH A HEARING AT
THE ARBITRATOR'S DISCRETION) ANY PRE-HEARING MOTIONS WHICH ARE
SIMILAR TO MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM OR
MOTIONS FOR SUMMARY ADJUDICATION. THE ARBITRATOR(S) SHALL RESOLVE
ALL DISPUTES IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE
APPLICABLE STATE (AS DEFINED ABOVE) AND MAY GRANT ANY REMEDY OR
RELIEF THAT A COURT OF SUCH STATE COULD ORDER OR GRANT WITHIN THE
SCOPE HEREOF AND SUCH ANCILLARY RELIEF AS IS NECESSARY TO MAKE
EFFECTIVE ANY AWARD. THE ARBITRATOR(S) SHALL ALSO HAVE THE POWER TO
AWARD RECOVERY OF ALL COSTS AND FEES, TO IMPOSE SANCTIONS AND TO
TAKE SUCH OTHER ACTION AS THE ARBITRATOR(S) DEEMS NECESSARY TO THE
SAME EXTENT A JUDGE COULD PURSUANT TO THE FEDERAL RULES OF CIVIL
PROCEDURE, THE APPLICABLE STATE’S (AS DEFINED ABOVE) RULES OF
CIVIL PROCEDURE OR OTHER APPLICABLE LAW. JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR
JUDICIAL RELIEF OR PURSUIT OF A PROVISIONAL OR ANCILLARY REMEDY
SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING
THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR CLAIM TO ARBITRATION IF
ANY OTHER PARTY CONTESTS SUCH ACTION FOR JUDICIAL
RELIEF.
(e) DISCOVERY. IN ANY ARBITRATION
PROCEEDING, DISCOVERY WILL BE PERMITTED IN ACCORDANCE WITH THE
RULES. ALL DISCOVERY SHALL BE EXPRESSLY LIMITED TO MATTERS DIRECTLY
RELEVANT TO THE DISPUTE BEING ARBITRATED AND MUST BE COMPLETED NO
LATER THAN 20 DAYS BEFORE THE HEARING DATE. ANY REQUESTS FOR AN
EXTENSION OF THE DISCOVERY PERIODS, OR ANY DISCOVERY DISPUTES, WILL
BE SUBJECT TO FINAL DETERMINATION BY THE ARBITRATOR(S) UPON A
SHOWING THAT THE REQUEST FOR DISCOVERY IS ESSENTIAL FOR THE PARTY'S
PRESENTATION AND THAT NO ALTERNATIVE MEANS FOR OBTAINING
INFORMATION IS AVAILABLE.
(f) CLASS PROCEEDINGS AND
CONSOLIDATIONS. NO PARTY HERETO SHALL BE ENTITLED TO JOIN OR
CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION,
EXCEPT PARTIES WHO HAVE EXECUTED THIS GUARANTY OR ANY OTHER
CONTRACT, INSTRUMENT OR DOCUMENT RELATED TO THE OBLIGATIONS, OR TO
INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR
MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF
THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL
CAPACITY.
(g) PAYMENT OF ARBITRATION COSTS AND
FEES. THE ARBITRATOR(S) SHALL AWARD ALL COSTS AND EXPENSES
OF THE ARBITRATION PROCEEDING.
(h) MISCELLANEOUS. TO THE MAXIMUM
EXTENT PRACTICABLE, THE AAA, THE ARBITRATOR(S) 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(S) 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 CONNECTION
WITH FINANCIAL REPORTING IN THE ORDINARY COURSE OF ITS BUSINESS OR
BY APPLICABLE LAW OR REGULATION. 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
SUBJECT MATTER OF THE DISPUTE SHALL CONTROL. THIS ARBITRATION
PROVISION SHALL SURVIVE TERMINATION, AMENDMENT OR EXPIRATION OF
THIS GUARANTY OR ANY RELATIONSHIP BETWEEN THE PARTIES.
(i) WAIVER OF JURY TRIAL. THE
PARTIES HERETO HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY OR ANY
OTHER AGREEMENT OR DOCUMENT DELIVERED IN CONNECTION HEREWITH, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
21. Counterparts;
Facsimile Execution. This Guaranty may be executed in any
number of duplicate originals or counterparts, each of which shall
be deemed to be an original and all taken together shall constitute
but one and the same instrument. Guarantor agrees that a facsimile
or electronic transmission of any signature of Guarantor shall be
effective as an original signature thereof. WFB agrees that a
facsimile or electronic transmission of this Guaranty executed by
WFB shall be effective as an original signature thereof. Any party
delivering an executed counterpart of this Guaranty by facsimile or
electronic transmission also shall deliver an original executed
counterpart of this Guaranty but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability,
and binding effect of this Guaranty.
22. Agreement to be
Bound. Guarantor hereby agrees to be bound by each and all
of the terms and provisions of the Account Purchase Agreement
applicable to Guarantor. Without limiting the generality of the
foregoing, by its execution and delivery of this Guaranty,
Guarantor hereby: (a) makes to WFB each of the representations
and warranties set forth in the Account Purchase Agreement
applicable to Guarantor fully as though Guarantor were a party
thereto, and such representations and warranties are incorporated
herein by this reference, mutatis
mutandis; and (b) agrees and covenants (i) to do
each of the things set forth in the Account Purchase Agreement that
Client agrees and covenants to cause Guarantor to do, and
(ii) to not do any of the things set forth in the Account
Purchase Agreement that Client agrees and covenants to cause
Guarantor not to do, in each case, fully as though Guarantor was a
party thereto, and such agreements and covenants are incorporated
herein by this reference, mutatis
mutandis.
[Signature
page to follow]
IN WITNESS WHEREOF, the undersigned has
executed and delivered this Guaranty as of the date first written
above.
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NOVUME SOLUTIONS, INC., a Delaware corporation
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name:
Title:
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Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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STATE
OF
)
)
ss.:
COUNTY
OF
)
On the
_____ day of September in the year 2017, before me, the
undersigned, personally appeared ______________________________,
personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by
his/her/their signatures on the instrument, the individual(s), or
the person upon behalf of which the individual(s) acted, executed
the instrument.
Notary
Public
My
Commission Expires:_____________________
My
Notarial Registration No.: _________________
