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AMENDED AND RESTATED
UNLIMITED GUARANTY OF PAYMENT AND PERFORMANCE
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THIS AGREEMENT OF GUARANTY, dated as of this 1st day of July, 1999, between
Xxxxxxxxx Instruments Incorporated, a Delaware corporation, with offices at 00
Xxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, and Digivision, Inc., a California
corporation, with offices at 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
(each being a "Guarantor", and collectively, the "Guarantors") and FLEET BANK,
N.A. with offices at 0000 Xxxxx 00 Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter, together with any successor and assigns, "Lender").
WITNESSETH:
WHEREAS, Xxxxxxxxx Technologies Inc., a Delaware corporation (the
"Borrower") is indebted to Bank pursuant to a certain Revolving Credit Note,
dated March 13, 1998 (the "Note"), which evidences an obligation in the original
maximum principal balance of $5,000,000.00 (the "Loan"); and
WHEREAS, Xxxxxxxxx Instruments Incorporated, executed and delivered an
Unlimited Guaranty of Payment and Performance, dated March 13, 1998, which
guaranteed the Borrower's obligations under the Note; and
WHEREAS, Borrower has since acquired Digivision, Inc.; and
WHEREAS, Borrower has requested that (i) Bank renew the Loan; and
WHEREAS, Lender is unwilling to renew the Loan without further security in
the form of an unconditional guaranty by the Guarantors; and
WHEREAS, to induce Lender to grant the Loan to the Borrower, each Guarantor
herein executes the within instrument; and
NOW, THEREFORE, in consideration of the premises contained herein and the
sum of ONE ($1.00) DOLLAR, the receipt of which is hereby acknowledged, the
undersigned agree as follows:
1. Guaranty. Each Guarantor, jointly, severally, absolutely and
unconditionally guarantees to Lender the due and prompt payment, whether at
maturity or by acceleration or otherwise, of the Loan including all principal,
interest and other monies due or that may become due under the documents
evidencing the Loan (collectively, the "Loan Documents") and the due and
punctual performance and observance by Borrower of any other terms, covenants
and conditions of the Loan Documents on the part of Borrower to be kept,
observed or performed together with all reasonable legal and other expenses of
collection and enforcement, including payment of the Loan. Each Guarantor hereby
expressly and unconditionally waives demand, notice of presentment and
non-payment, protest and notice of protest, of said Note and consents that the
time for payment thereof may be extended by Lender without notice to or further
consent from any Guarantor.
2. Actions of Lender Do Not Affect Liability. In addition to (but not in
limitation of) all of the foregoing provisions, Lender may take any of the
following actions (with or without notice to any Guarantor) without affecting
the liability of any Guarantor in any way:
(a) Release, exchange, increase, decrease or surrender all or any part
of the security held by Lender for the said obligation, or substitute new
security for all or any portion thereof, whether or not the new security
shall be equal in value with the security substituted.
(b) Recast, extend or modify all or any portion of Note.
(c) Grant waivers, extensions, renewals or other indulgences under any
of the Loan Documents.
(d) Modify or amend any of the terms, provisions or agreements
contained in any of the Loan Documents.
(e) Vary, exchange, release or discharge, wholly or partially, or
delay in or abstain from perfecting or enforcing any security or guaranty
of the Loan Documents by any other person.
(f) Accept partial payment or performance of any of the obligations
due under the Loan Documents from the Borrower or any Guarantor.
(g) Compromise or make any settlement or other arrangement with the
Borrower or any Guarantor.
3. Liability Unconditional. Liability on this Guaranty shall not be
conditional or contingent upon the pursuance by Lender of whatever remedies that
Lender may have against Borrower, nor shall Lender be required to foreclose,
exhaust, or in any other way look for any security that Lender now has or that
Lender may obtain or acquire in the future. Lender shall not be obligated or
required to pursue any remedies it may have against Borrower, upon default of
Borrower, prior to pursuing any remedy against any Guarantor. Not in limitation
of the generality of the foregoing, the liability of any Guarantor hereunder
shall remain effective and enforceable even though Borrower's liability under
the Loan Documents may be unenforceable or even though recovery against the
Borrower may be barred by a statute of limitations or otherwise. Guarantor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation, from any cause whatsoever, of the
liability of Borrower.
4. Continuing Liability. Liability of the Guarantor hereunder shall be a
continuing one and shall extend to any and all notes or other evidences of
indebtedness that may be given in extension or renewal of the Note.
5. Representations and Warrants. Each Guarantor hereby represents and
warrants that:
(a) Xxxxxxxxx Instruments, Incorporated, is a New Jersey corporation
in good standing and qualified to do business in New Jersey and all other
jurisdictions in which it conducts business or owns assets. Digivision,
Inc., is a California corporation in good standing and qualified to do
business in all other jurisdictions in which it conducts business or owns
assets.
(b) The execution of this guaranty by each Guarantor has been duly
authorized by proper action of its respective board of directors and the
persons executing this guaranty on behalf of each Guarantor have been
authorized to act on the Guarantor's behalf and to bind each respective
Guarantor to the terms hereof.
(c) Each Guarantor has the legal capacity to enter into this Guaranty
and to perform its obligations hereunder.
(d) This Guaranty constitutes the legal, valid and binding obligation
of each Guarantor and is enforceable against each Guarantor in accordance
with its terms, subject to creditors, rights in general and bankruptcy and
insolvency laws.
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(e) There is no action, suit, proceeding, inquiry or investigation, at
law or in equity, or before or by any court, public board or body, pending
or within the knowledge of any Guarantor threatened, wherein an unfavorable
decision, ruling or finding would (i) to the extent not covered by
insurance, result in any material, adverse change in the business,
financial condition, properties or operations of any Guarantor; (ii)
materially adversely affect the transactions contemplated in the Loan
Documents or this Guaranty; or (iii) adversely affect the validity or
enforceability of the Loan Documents or this Guaranty. All authorizations,
consents and approvals of governmental bodies or agencies required in
connection with the execution and delivery of this Guaranty or in
connection with the performance of each Guarantor's obligations hereunder
have been obtained and will be obtained whenever required hereunder by law.
(f) Neither the execution and delivery of this Guaranty, the
consummation of the transactions contemplated hereunder, nor the
fulfillment of or compliance with the terms and conditions contained herein
is prevented, limited by, conflicts with or results in a breach of the
terms, conditions or provisions of any law, rule, regulation, order of any
court or governmental agency, or any evidence of indebtedness, agreement or
instrument of whatever nature to which any Guarantor (or any company,
corporation or other business entity controlled by Guarantor or affiliated
with it) is now a party, or to which any Guarantor or any such entity is
bound, or constitutes a default under any of the foregoing. Such execution,
delivery, consummation and performance will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or
assets of any Guarantor or any such entity.
(g) The granting of the credit facility to the Borrower will result in
material benefits to each Guarantor.
(h) Neither this Guaranty nor any other document, certificate or
statement furnished to the Lender by or on behalf of the Borrower or any
Guarantor contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
herein and therein not misleading or incomplete.
(i) The representations and warranties of the Borrower to the Lender
were wholly true and accurate when made and are wholly true and accurate as
of the execution hereof.
6. Covenants of Guarantor. Each Guarantor hereby covenants and agrees that:
(a) Guarantor guarantees, unconditionally, that the Loan and other
obligations of Borrower under the Loan Documents will be paid and performed
in accordance with their terms, promptly upon demand of the Lender.
(b) Guarantor shall cause the Borrower to fully perform and observe
all of the covenants, agreements and obligations of the Borrower under each
of the Loan Documents.
(c) If Guarantor shall receive any monies, by reason of the exercise
of any rights of subrogation or contribution, prior to the payment in full
and performance of the Obligations contained herein and under the Loan
Documents, such amounts shall be paid by such Guarantor directly to the
Lender.
(d) If Borrower is now or shall hereafter become indebted to
Guarantor, the amount of each sum and such indebtedness shall at all times
be subordinate, as to lien, time of payment and in all other respects to
the amounts owing to the Lender under the Loan Documents, and Guarantor
shall not be entitled to enforce or receive payment thereof until all sums
owing to the Lender have been paid. Nothing herein contained is intended or
shall be construed to give Guarantor any right of
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subrogation in or under the Note, or any right to participate in any way
therein, notwithstanding any payments made by Guarantor under the Guaranty.
The obligations of the Guarantor hereunder shall continue in full force and
effect until the obligations and all obligations of the Borrower shall have
been fully paid and performed.
(e) At all times during the term of this Guaranty, Guarantor shall
operate and maintain its assets and properties in a reasonable manner and
keep their property in good repair, and shall not despoil their assets.
(f) Guarantor shall promptly notify Lender of any material and adverse
changes in Guarantor's financial condition during the period of time that
the Loan remains outstanding.
(g) Guarantor shall promptly notify Lender of any litigations,
actions, proceedings, claims or investigations, pending or threatened
against Guarantor, that may materially and adversely affect the financial
condition of Guarantor.
7. Events of Default. Any one or more of the following shall constitute an
"Event of Default" hereunder:
(a) Failure of any Guarantor to perform its obligations herein or
under the terms of the Revolving Credit Loan Agreement, dated March 13,
1998, as amended.
8. Remedies Upon Default. If any one or more Events of Default shall occur
under this Guaranty, then in each case, the Lender shall have all rights and
remedies, including but not limited to the right to:
(a) cause all amounts payable hereunder and pursuant to the Loan
Documents to be immediately due and payable, whereupon the same shall
become immediately due and payable;
(b) take any other action available, either in law or in equity to
enforce performance or collect any amounts due or thereafter to become due
under this Guaranty, or any of the Loan Documents and exercise all rights
and remedies of the Lender thereunder;
(c) enforce the observance of any of the covenants or obligations of
any Guarantor under this Guaranty or any of the obligations of the Borrower
under the Loan Documents.
9. Costs of Collection. This Guaranty also includes all reasonable
attorneys' fees and expenses and disbursements incurred by Lender in the
collection, enforcement of payment or performance by Borrower of any obligation
of Borrower to Lender, and in the collection, enforcement of payment or
performance by each Guarantor hereunder, including all reasonable expenses
incurred in enforcing all rights under this Guaranty.
10. No Waiver. Any waiver by Lender on default of Borrower, and any failure
on the part of Lender to enforce its rights against Borrower, shall be limited
to that particular instance, shall not operate or be deemed to waive any future
default or defaults, and shall not affect the absolute and unconditional
liability of any Guarantor. Any extensions of time granted by Lender to Borrower
shall not release any Guarantor from its obligations hereunder.
11. Indemnification. Each Guarantor shall indemnify and save the Lender
harmless from any loss, claim, demand or charge whatsoever incurred by Lender
arising out of or resulting from default of the Borrower under any of the Loan
Documents.
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12. Continuing Effect. This Guaranty shall continue in full effect,
notwithstanding any insolvency or bankruptcy of the Borrower.
13. Consent and Waiver By Guarantor. Each Guarantor hereby consents to all
the terms and provisions of each of the Loan Documents, as the same may be from
time to time amended or modified. Each Guarantor hereby irrevocably waives:
(a) Notice of acceptance of this Guaranty and notice that credit has
been extended by the Lender in reliance thereon;
(b) Notice of any amendment or any change in the terms of any of the
Loan Documents, or any other present or future agreement relating directly
or indirectly thereto;
(c) Notice of any default or Event of Default under any of the Loan
Documents, or any other present or future agreement relating directly or
indirectly thereto;
(d) Demand for performance, observance of and enforcement of any
provisions, or any pursuit or exhaustion of any rights or remedies against
the Borrower, or any other Guarantor or obligor who becomes liable in any
manner for any of the obligations, and any requirements of diligence or
promptness on the part of the Lender or any assignee of Lender in
connection therewith;
(e) Diligence, presentment, protest, notice of dishonor and notice of
default in the payment of any amount at any time payable by the Borrower
under or in connection with any of the Loan Documents;
(f) The benefit of any statute of limitations affecting Guarantor's
liability hereunder or the enforcement thereof, and agrees that any payment
of any indebtedness or other act that shall toll any statute of limitations
applicable thereto shall similarly operate to toll such statute of
limitations applicable to Guarantor's liability hereunder; or
(g) The benefit of laws exempting property from levy or execution.
14. Binding Effect. Each Guarantor hereto agrees that this Guaranty shall
bind and inure to the benefit of its successors and assigns.
15. Governing Law. This Guaranty shall be governed by the substantive law
of New Jersey. Each Guarantor hereby consents to the jurisdiction of the courts
of the State of New Jersey or the federal courts located in the federal district
of New Jersey.
16. Assignment By Lender. Lender may, without notice, assign this Guaranty
in whole or in part to a party to whom the Loan is assigned.
17. Setoff. In addition to all liens upon, and rights of setoff against,
the monies, securities or other property of each Guarantor given to Lender by
law, Lender shall have a lien upon and a right of setoff against, all monies,
securities and other property of each Guarantor now or hereafter in the
possession of Lender. Every such lien and right of setoff may be exercised
without demand upon or notice to any Guarantor. No lien or right of setoff shall
be deemed to have been waived by any act or conduct on the part of Lender, or by
any neglect to exercise such right of setoff or to enforce such lien, or by any
delay in so doing. Every right of setoff and lien shall continue in full force
and effect until such right of setoff or lien is assigned to Lender as security
for this Guaranty and the Loan, without reducing or affecting in any manner the
liability of any Guarantor under the other provisions of this Guaranty. Any
notes now or hereafter evidencing indebtedness of Borrower to any Guarantor
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shall be marked with a legend that the same are subject to this Agreement and,
if Lender so requests, shall be delivered to Lender.
18. Notices. All notices, requests and other communication pursuant to this
Guaranty shall be in writing, addressed to the Lender at its place of business
first indicated above or to the Guarantor at its address first indicated above
or at such other address as either party may give notice to the other as herein
provided. Any notice shall be by certified mail, return receipt requested, and
shall be effective upon mailing. If hand delivered, the notice shall be
effective upon receipt.
19. Obligations Absolute. The obligations of each Guarantor hereunder shall
be joint, several and absolute.
20. Severability. If any term, provision, covenant or condition hereof
should be held by a court of competent jurisdiction to be invalid, void or
unenforceable, all other provisions, covenants and conditions hereof not held
invalid, void or unenforceable shall continue in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
21. Payment Without Deduction. Each Guarantor shall make all payments
required hereunder, free of any deductions, and without abatements, deduction or
setoff.
22. Waiver of Jury Trial. Each Guarantor waives any right to a jury trial
in any litigation in any court with respect to, in connection with or arising
out of the Loan or any instrument or document delivered pursuant to the Loan, or
with respect to the validity, protection, interpretation, collection or
enforcement of the Loan.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first written above.
ATTEST: GUARANTOR:
Xxxxxxxxx Instruments Incorporated,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxxxx
Vice President Finance Title: President
Digivision, Inc.
a California corporation
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxxxx
Vice President Finance Title: President
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