Exhibit 10.19
UNLIMITED CONTINUING AND UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, and to induce THE HUNTINGTON NATIONAL BANK, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000 (herein called "Lender"), to make loans
or advances or to extend credit or other financial accommodations or benefits,
with or without security, to or for the account of SOFTWARE TECHNOLOGY, INC., a
Florida corporation, (herein called "Borrower"), the undersigned, EXIGENT
INTERNATIONAL, INC., a Delaware corporation, hereby jointly and severally agree
as follows.
1. The undersigned hereby absolutely and unconditionally guarantees to
Lender and any transferee of this Guaranty or any Liability guaranteed hereby,
the prompt and full payment of the Liabilities. The undersigned agrees that if
Xxxxxxxx fails to fully and timely perform any Liability, the undersigned will
fully and timely perform the Liability without resort by Lender to any other
person. Any obligation of the undersigned under this Guaranty is in addition to
any and shall not prejudice or be prejudiced by any other agreement (including
any other agreement signed by the undersigned) which Lender may now or hereafter
hold relative to any of the Liabilities. Any payment of the undersigned under
this Guaranty may be applied to any of the Liabilities as Lender may choose. Any
obligation of the undersigned to Lender hereunder is primary, absolute and
unconditional. The terms "Liability" or "Liabilities" as used herein shall
include, without limitation, all liabilities and obligations of Borrower to
Lender including, but not limited to, all liabilities and obligations of
Borrower arising out of, the $3,511,111.22 aggregate loan transaction of even
date herewith, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint or several, due
or to become due, or which may be herein or hereafter contracted or acquired, or
incurred directly or indirectly in respect thereof, and all extensions or
renewals thereof and all sums payable under or by virtue thereof including,
without limitation, all amounts of principal and interest and all expenses
(including attorneys' fees and costs of collection as specified therein)
incurred in the collection thereof or the enforcement of rights thereunder,
whether arising in the ordinary course of business or otherwise, and whether
held or to be held by Lender for its own account or as agent for another or
others.
2. The undersigned waives notice of acceptance of this guaranty and notice
of any Liability to which it may apply, and waives presentment, demand for
payment, protest, notice of dishonor or nonpayment of any Liabilities and any
suit or the taking of other action by Xxxxxx against, and any other notice to,
any party liable thereon (including the undersigned).
3. Lender may at any time and from time to time without notice to the
undersigned (except as required by law), without incurring responsibility to the
undersigned, without impairing, releasing or otherwise affecting the obligations
of the undersigned in whole or in part and without the endorsement or execution
by the undersigned of any additional consent, waiver or guaranty (a) change the
manner, place or terms of payment, and change or extend the time of or renew or
alter, any Liability or installment thereof, or any security therefor, and may
loan additional monies or extend additional credit to Borrower, with or without
security, thereby creating new Liabilities the payment of which shall be
guaranteed hereunder, and the guaranty herein made shall apply to the
Liabilities as so changed, extended, renewed, increased or otherwise altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property at any time pledged, mortgaged or
otherwise encumbered to secure the Liabilities and any offset thereagainst; (c)
exercise or refrain from exercising any rights against Borrower or others
(including the undersigned) or act or refrain from acting in any other manner;
(d) settle or compromise any Liability or any security therefor and may
subordinate the payment of all or any part thereof to the payment of any
Liability (whether or not due) of Borrower to creditors of Borrower other than
Lender and the undersigned; and (e) apply any sums from any sources to any
Liability without regard to any Liabilities remaining unpaid.
4. No invalidity, irregularity or unenforceability of all or any part of
the Liabilities or of any security therefor shall affect, impair or be a defense
to this guaranty, and this guaranty is a primary and absolute obligation of the
undersigned.
5. This guaranty is an unconditional and continuing one, and all
Liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. This guaranty
shall continue in full force and effect notwithstanding the death of anyone
liable in any manner for the Liabilities and notwithstanding the sale, transfer,
relinquishment or abandonment of any beneficial interest therein or thereunder,
or the dissolution, death, incapacity or other disability of any beneficiary
thereof.
6. All notices provided to be given to Lender herein shall be sent by
registered or certified mail or express delivery service, return receipt
requested, to the address shown in the preamble to this agreement.
7. As security for the Liabilities and the obligation of the undersigned
under this Guaranty, Lender is hereby given a lien upon, security title to and a
security interest in all property of the undersigned now or at any time
hereafter in possession of Lender in any capacity whatsoever, and whether
individual, joint or by the entireties, including but not limited to any balance
or share in any deposits, funds, accounts, trusts, agency or special accounts,
items, securities, other property or monies of the undersigned now or hereafter
in the possession or control of or otherwise with Lender, to include all
dividends and distributions thereon or other rights in connection therewith, and
Lender shall have such right to such property as authorized by law. Without
limiting the generality of the foregoing, Lender shall have a prior perfected
security interest to secure the Liabilities and may, at any time or from time to
time at its option and without notice: (a) set off against such deposit
balances, funds, items, certificates of deposit, securities, other property and
monies and apply the same towards the payment of any of the Liabilities, and (b)
transfer into its own name or that of its nominee any such property in the
possession or custody of Lender.
8. The undersigned shall be in default hereunder upon: (a) non-payment of
any Liability when due or before the expiration of applicable grace periods; (b)
failure of Borrower or the undersigned to perform any agreement creating or
otherwise affecting any Liability or any provision hereof, or to pay in full,
when due, any other obligation of Borrower or the undersigned, all within and
before the expiration of any applicable grace period; (c) the appointment of a
receiver of any part of the property of Borrower or of any material part of the
property of the undersigned, assignment for the benefit of creditors or the
commencement of any proceedings in bankruptcy or insolvency by Borrower or the
undersigned or the failure to timely contest, or to secure dismissal within
sixty days of filing, any involuntary proceeding seeking the adjudication of
Borrower or the undersigned as bankrupt or insolvent; (d) the entry of a final,
unappealable judgment having a material adverse affect against Borrower or the
undersigned; (e) the taking of possession of any substantial part of the
property of Borrower or the undersigned at the instance of any governmental
authority; (f) the insolvency of the undersigned; or (g) falsity in any material
respect of, or any material omission in, any representation or statement made to
Lender by or on behalf of Borrower or the undersigned in connection with any
Liability or other obligation of such parties.
9. Upon the occurrence of any default hereunder, Lender shall have all of
the remedies of a creditor and to the extent applicable, of a secured party,
under all applicable law, and, without limiting the generality of the foregoing,
Lender may, at its option and without notice or demand: (a) declare any
Liability accelerated and due and payable at once, and (b) take possession of
any collateral security wherever located, and sell, resell, assign, transfer and
deliver all or any part of said property of Borrower or the undersigned, for
cash or on credit or for future delivery, and, upon any such sale, Lender,
unless prohibited by law the provisions of which cannot be waived, may purchase
all or any part of said property to be sold, free from and discharged of all
trusts, claims, right of redemption and equities of the undersigned whatsoever;
and (c) set off against any or all Liabilities or other obligations of the
undersigned all money owed by Xxxxxx in any capacity to the undersigned whether
or not due, and also set off against all other Liabilities of Borrower or
obligations of the undersigned to Lender all money owed by Xxxxxx in any
capacity to Borrower or the undersigned, and Lender shall be deemed to have
exercised such right of set-off and to have made a charge against any such money
immediately upon the occurrence of such default although made or entered on the
books subsequent thereto. Until all of the obligations of Borrower to Lender
have been paid and performed in full, the undersigned shall have no right of
subrogation to the rights and remedies of Lender against Xxxxxxxx, and the
undersigned hereby waive any rights to enforce any remedy which Lender may have
against Borrower and any rights to participate in any security for any
indebtedness hereby guaranteed.
10. The undersigned shall pay all costs of collection and reasonable
attorneys' fees, including reasonable attorneys' fees before, after or during
suit and out of court, in trial, on appeal, in bankruptcy proceedings or
otherwise, incurred or paid by Xxxxxx in enforcing the payment of any Liability
or enforcing or preserving any right or interest of Lender, with respect to the
Liabilities or this Guaranty, including the collection, sale or delivery of any
collateral security from time to time pledged, and after deducting such fees,
costs and expenses from the proceeds of sale or collection, Lender may apply any
residue to pay any of the Liabilities and the undersigned shall continue to be
liable for any deficiency with interest, which shall remain a Liability.
11. If claim is ever made upon Lender for repayment or recovery of any
amount or amounts received by Lender in payment or on account of any of the
Liabilities and Lender repays all or part of said amount by reason of any
judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of its property or any settlement or compromise
of any such claim effected by Lender with any such claimant (including
Borrower), then the undersigned agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the undersigned, notwithstanding
any revocation or cancellation of any note or other instrument evidencing any
Liability, and the undersigned shall be and remain liable to Lender hereunder
for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by Xxxxxx.
12. Lender shall not be bound to take any steps necessary to preserve any
rights in any of the property of the undersigned against prior parties who may
be liable in connection therewith, and the undersigned hereby agrees to take any
such steps. Lender may nevertheless at any time after and during the continuance
of a default (a) take any action it may deem appropriate for the care or
preservation of such property or of any rights of the undersigned or Lender
therein (b) demand, sue for, collect or receive any money or property at any
time due, payable or receivable on account of or in exchange for any property of
the undersigned; (c) compromise and settle with any person liable on such
property, or (d) extend the time of payment or otherwise change the terms
thereof as to any party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations of the
undersigned.
13. No delay on the part of Lender in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver of any of its rights hereunder, and no modification or
amendment of this guaranty, shall be deemed to be made by Lender unless the same
shall be in writing, duly signed on behalf of Lender by a duly authorized
officer of Lender, and each such waiver, if any, shall apply only with respect
to the specific instance involved, and shall in no way impair the rights of
Lender or the obligations of the undersigned to Lender in any other respect at
any other time.
14. Lender shall not be required to proceed first against Borrower, or any
other person, firm, partnership or corporation, whether primarily or secondarily
liable, or against any collateral security held by it, before resorting to the
undersigned for payment, and the undersigned shall not be entitled to assert as
a defense to the enforceability of the guaranty set forth herein any defense of
Borrower with respect to any Liability.
15. Any and all rights and claims of the undersigned against Borrower or
any of Borrower's property shall be subordinate and subject in right of payment
to the prior payment in full of all Liabilities. The undersigned hereby
subordinates any and all indebtedness of Borrower now or hereafter owed to the
undersigned to all indebtedness of Borrower to Lender, and agrees with Lender
that the undersigned shall not demand or accept any payment of principal or
interest from Borrower, shall not claim any offset or other reduction of any of
the undersigned's obligations hereunder because of any such indebtedness and
shall not take any action to obtain any of the security described in and
encumbered by the security instruments securing any of the Liabilities;
provided, however, that, if Lender so requests, such indebtedness shall be
collected, enforced and received by the undersigned as trustee for Lender and be
paid over to Lender on account of the indebtedness of Borrower to Lender, but
without reducing or affecting in any manner the liability of the undersigned
under the other provisions of this Guaranty.
16. The undersigned warrants and represents to Lender that all financial
statements heretofore delivered by the undersigned to Lender are true and
correct in all respects as of the date hereof.
17. At the request of Xxxxxx, the undersigned shall, from time to time,
prepare and deliver to Lender a complete and current financial statement setting
forth all the assets and liabilities of the undersigned, signed by the
undersigned under oath as being true and correct.
18. This Guaranty may not be changed orally or by implication, and no
obligation of the undersigned can be released or waived by Lender or any officer
or agent of Lender, except by a writing, signed by a duly authorized officer of
Lender. This Guaranty shall be irrevocable by the undersigned until all
indebtedness guaranteed hereby has been completely repaid and all the
Liabilities, including but not limited to the obligations and undertakings of
Borrower under, by reason of, or pursuant to the note and loan documents
executed contemporaneously herewith, have been completely paid, performed and
discharged.
19. If from any circumstances whatsoever fulfillment of any provisions of
this Guaranty, at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by any applicable usury
statute or any other applicable law as of the date hereof, with regard to
obligations of like character and amount, then ipso facto the obligation to be
fulfilled shall be reduced to the limit of such validity, so that in no event
shall any exaction be possible under this Guaranty that is in excess of the
limit of such validity as of the date hereof, but such obligation shall be
fulfilled to the limit of such validity. The provisions of this paragraph shall
control over every other provision of this Guaranty.
20. This Guaranty is binding upon the undersigned, and its successors and
assigns, and shall inure to the benefit of Lender, its successors, endorsees and
assigns.
21. This Guaranty has been delivered in the State of Florida and shall be
construed in accordance with the laws of Florida. Wherever possible, each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. To the extent permitted by applicable law, the undersigned hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
22. THE UNDERSIGNED XXXXXX CONSENTS AND AGREES THAT, IN ANY ACTIONS
PREDICATED UPON THIS GUARANTY, VENUE IS PROPERLY LAID IN BREVARD COUNTY,
FLORIDA, AND THAT THE CIRCUIT COURT FOR BREVARD COUNTY, FLORIDA SHALL HAVE FULL
JURISDICTION TO DETERMINE ALL ISSUES ARISING OUT OF OR IN CONNECTION WITH THE
EXECUTION AND ENFORCEMENT OF THIS GUARANTY OR THE COLLECTION OF ANY OF THE
LIABILITIES. THE UNDERSIGNED WAIVE TO THE FULLEST EXTENT PERMITTED UNDER THE
LAWS OF THE STATE OF FLORIDA, ANY RIGHT, POWER OR PRIVILEGE TO DEMAND A JURY
TRIAL WITH RESPECT TO ANY AND ALL ISSUES ARISING OUT OF OR IN CONNECTION WITH
THE EXECUTION AND/OR ENFORCEMENT OF THIS GUARANTY OR THE COLLECTION OF ANY OF
THE LIABILITIES.
Dated as of December 31, 1998.
EXIGENT INTERNATIONAL, INC.,
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX, CFO
Tax Identification No.: 00-0000000
