UNCONDITIONAL GUARANTY
Exhibit
10.2
This
Guaranty is made as of December 10, 2009 by each of the undersigned guarantors
(individually, a “Guarantor”
and collectively, the “Guarantors”) for the benefits
of Agility Capital, LLC (“Lender”).
Recitals
Lender
and Pepperball Technologies-CA, Inc. (“Company”) are parties to that certain
Loan Agreement dated as of November 18, 2005, as amended on April 12, 2006,
September 8, 2006, April 20, 2007, October 19, 2007, April 25, 2008, December
12, 2008, and December 10, 2009, and as may be further amended from time to time
(collectively, the “Agreement”). Company and Lender propose to enter
into a Sixth Amendment to Loan Agreement dated as of even date herewith (the
“Amendment”). Guarantor is an affiliate of Company and expects to
derive benefit from Company entering into the Amendment. Each
Guarantor hereby unconditionally and irrevocably guarantees the prompt and
complete payment of all amounts that Company owes to Lender and performance by
Company of the Agreement, as amended, in strict accordance with its
terms. All terms used without definition in this Guaranty shall have
the meaning assigned to them in the Agreement.
1. The
obligations hereunder are joint and several, and whether or not there is more
than one guarantor, the obligations hereunder are independent of the obligations
of Company and any other person or entity, and a separate action or actions may
be brought and prosecuted against Guarantor whether action is brought against
Company or whether Company be joined in any such action or
actions. Each Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof, to the
extent permitted by law. Guarantor’s liability under this Guaranty is
not conditioned or contingent upon the genuineness, validity, regularity or
enforceability of the Agreement.
2. Each
Guarantor unconditionally and irrevocably guarantees the prompt and complete
payment of all amounts that Company owes to Lender and performance by Company of
the Agreement. All terms used without definition in this Guaranty
shall have the meaning assigned to them in the Agreement. If Company
does not pay any amount or otherwise perform its obligations in strict
accordance with the Agreement, Guarantors shall immediately pay all amounts due
thereunder (including, without limitation, all principal, interest, and fees)
and otherwise proceed to complete the same and satisfy all of Company’s
obligations under the Agreement.
3. Each
Guarantor authorizes Lender, without notice or demand and without affecting its
liability hereunder, from time to time to (a) renew, extend, or otherwise
change the terms of the Agreement or any part thereof; (b) take and hold
security for the payment of this Guaranty or the Agreement, and exchange,
enforce, waive and release any such security; and (c) apply such security
and direct the order or manner of sale thereof as Lender in its sole discretion
may determine.
4. Each
Guarantor waives any right to require Lender to (a) proceed against
Company, any guarantor, or any other person; (b) proceed against or exhaust
any security held from Company; or (c) pursue any other remedy in Lender’s
power whatsoever. Lender may, at its election, exercise or decline or
fail to exercise any right or remedy it may have against Company or any security
held by Lender, including without limitation the right to foreclose upon any
such security by judicial or nonjudicial sale, without affecting or impairing in
any way the liability of Guarantor hereunder. Each Guarantor waives
any defense arising by reason of any disability or other defense of Company, or
by reason of the cessation from any cause whatsoever of the liability of
Company. Each Guarantor waives any setoff, defense or counterclaim
that Company may have against Lender. Each Guarantor waives any
defense arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or any other rights against
Company. Until all of the amounts that Company owes to Lender have
been paid in full, no Guarantor shall have no right of subrogation or
reimbursement, contribution or other rights against Company, and each Guarantor
waives any right to enforce any remedy that Lender now has or may hereafter have
against Company. Each Guarantor waives all rights to participate in
any security now or hereafter held by Lender. Each Guarantor waives
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness. Each Guarantor assumes the responsibility for being and
keeping itself informed of the financial condition of Company and of all other
circumstances bearing upon the risk of nonpayment of any indebtedness or
nonperformance of any obligation of Company, warrants to Lender that it will
keep so informed, and agrees that absent a request for particular information by
such Guarantor, Lender shall not have any duty to advise each Guarantor of
information known to Lender regarding such condition or any such
circumstances. Each Guarantor waives the benefits of California Civil
code sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899, and
3433.
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5. If
Company becomes insolvent or is adjudicated Bankrupt or files a petition for
reorganization, arrangement, composition or similar relief under any present or
future provision of the United States Bankruptcy Code, or if such a petition is
filed against Company, and in any such proceeding some or all of any
indebtedness or obligations under the Agreement are terminated or rejected or
any obligation of Company is modified or abrogated, or if Company’s obligations
are otherwise avoided for any reason, each Guarantor agrees that such
Guarantor’s liability hereunder shall not thereby be affected or modified and
such liability shall continue in full force and effect as if no such action or
proceeding had occurred. This Guaranty shall continue to be effective
or be reinstated, as the case may be, if any payment must be returned by Lender
upon the insolvency, Bankruptcy or reorganization of Company, a Guarantor, any
other guarantor, or otherwise, as though such payment had not been
made. Any indebtedness of Company now or hereafter held by a
Guarantor is hereby subordinated to any indebtedness of Company to Lender; and
during the existence of an Event of Default such indebtedness of Company to a
Guarantor shall be collected, enforced and received by such Guarantor as trustee
for Lender and be paid over to Lender on account of the indebtedness of Company
to Lender but without reducing or affecting in any manner the liability of
Guarantors under the other provisions of this Guaranty.
6. Each
Guarantor agrees to pay reasonable attorneys’ fees and all other costs and
expenses which may be incurred by Lender in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed,
waived, revoked or amended without Lender’s prior written
consent. Should any provision of this Guaranty be determined by a
court of competent jurisdiction to be unenforceable, all of the other provisions
shall remain effective. This Guaranty, together with any Agreement
(including without limitation any security Agreement or any pledge Agreement)
executed in connection with this Guaranty, embodies the entire agreement among
the parties hereto with respect to the matters set forth herein, and supersedes
all prior Agreement among the parties with respect to the matters set forth
herein. No course of prior dealing among the parties, no usage of
trade, and no parol or extrinsic evidence of any nature shall be used to
supplement, modify or vary any of the terms hereof. There are no
conditions to the full effectiveness of this Guaranty. Lender may
assign this Guaranty without in any way affecting Guarantor’s liability under
it. This Guaranty shall inure to the benefit of Lender and its
successors and assigns. This Guaranty is in addition to the
guaranties of any other guarantors and any and all other guaranties of Company’s
indebtedness or liabilities to Lender.
7. Each
Guarantor represents and warrants to Lender that (i) such Guarantor has
taken all necessary and appropriate action to authorize the execution, delivery
and performance of this Guaranty and (ii) execution, delivery and
performance of this Guaranty do not conflict with or result in a breach of or
constitute a default under such Guarantor’s organizational documents or
agreements to which it is party or by which it is bound.
8. This
Guaranty shall be governed by the laws of the State of California, without
regard to conflicts of laws principles. EACH GUARANTOR WAIVES ANY
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. Each Guarantor submits to the jurisdiction of the
state and federal courts located in Santa Xxxxxxx County, California for
purposes of this Guaranty and the Agreement. If the jury waiver set
forth in this Section is not enforceable, then any dispute, controversy or claim
arising out of or relating to this Agreement or any of the transactions
contemplated herein shall be settled by judicial reference pursuant to Code of
Civil Procedure Section 638 et seq before a mutually acceptable referee sitting
without a jury, or if no agreement is reached, then a referee sitting without a
jury selected by the Presiding Judge of the California Superior Court for Santa
Xxxxxxx County. Nothing in this section shall restrict the exercise
of any non-judicial remedies.
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9. All
payments made by each Guarantor hereunder will be made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any governmental authority or by any political subdivision
or taxing authority thereof or therein with respect to such payments (but
excluding any tax imposed on or measured by the net income or profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). If any Taxes are so levied or
imposed, each Guarantor agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Guaranty, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein and in the Loan
Documents
10. To secure
performance of this Guaranty and any amounts due under this Guaranty, each
Guarantor grants Lender a security interest in all of such Guarantor’s property,
now owned or hereafter arising, including accounts, inventory, equipment,
general intangibles, intellectual property, copyrights, patents, trademarks,
financial assets, securities, instruments, deposit accounts, chattel paper,
investment property, and the proceeds thereof (collectively, the
“Collateral”). No Guarantor shall not encumber, sell, license or
otherwise dispose of any interest in the Collateral without Lender’s prior
written consent. Each Guarantor authorizes Lender to file a financing
statement, and take such other actions as Lender deems appropriate to perfect
this security interest.
In Witness
Whereof, the undersigned Guarantor has executed this Guaranty as of the
date first written above.
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By:
/s/ Xxxxxxxx
Xxxxx
Title:
Asst
Secretary
Address
for notices:
0000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Telephone:
000.000.0000
Fax:
000.000.0000
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VIZER
GROUP, INC.
By:
/s/ Xxxxxxxx
Xxxxx
Title:
Asst
Secretary
Address
for notices:
00000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
Telephone:
000.000.0000
Fax:
000.000.0000
VERITAS
TACTICAL, INC.
By:
/s/ Xxxxxxxx
Xxxxx
Title:
Asst
Secretary
Address
for notices:
00000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
Telephone:
000.000.0000
Fax:
000.000.0000
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