GUARANTY
This
Guaranty (the "Guaranty”) is made on the 19 day of December 2007, among the
persons whose names are set forth at the end of this Guaranty (collectively
the
"GuarantoI8"), and TRANSCAP TRADEFINANCE LLC, an Illinois limited liability
company as successor in interest to TRANSCAP TRADE FINANCE, an Illinois general
partnership (the "Contractor"),
as follows:
BACKGROUND
OF AGREEMENT:
A.
The
Contractor and Destination Software, Inc., a New Jersey corporation (the
"Distributor"), have on this day entered into a Master Purchase Order Assignment
Agreement (the "Assignment Agreement") under the terms of which the Distributor
will assign customer purchase orders to the Contractor and request the
Contractor to purchase the required materials to fulfill such purchase orders;
the Contractor will retain the Distributor to manufacture, process and ship
ordered goods; and fees will be paid to the Contractor and the Distributor
for
their services there under.
B.
Each
of the Guarantors has a substantial financial stake in the Distributor and
will
substantially
benefit from the performance by Contractor of its obligations under the
Assignment
Agreement.
C.
The
execution of this Guaranty is an express condition to the consummation of the
transactions
contemplated by the Assignment Agreement and the Contractor is unwilling to
enter into or perform in accordance with the Assignment Agreement in the absence
of the execution of this Guaranty.
NOW
THEREFORE, in consideration of the services to be performed, the payments to
be
made, and the obligations to be assumed by the Contractor pursuant to the
Assignment Agreement, and further as an inducement to the Contractor to enter
into and perform in accordance with the Assignment Agreement, the Guarantors
hereby agree as follows:
I.
DEFINITIONS. In this Guaranty. the following frequently used terms are defined
as
set
forth in this Section I:
(a)
Any
terms used in this Guaranty which are defined in the Assignment Agreement will
have
the
same meaning herein as is ascribed to such term in the Assignment
Agreement.
(b)
The
"Contract Documents" are, collectively, the Assignment Agreement, ~e Security
Agreement
and Financing Statement between the Contractor and the Distributor dated this
day. The Subordination Agreement between the Contractor, the Distributor, and
the Senior Lender dated this day, and this Guaranty.
(c)
The
"Obligations” mean all of the obligations of the Distributor and each of the
Guarantors pursuant to the Contract Documents.
(d)
The
term "Guarantors" means all of the undersigned, jointly and severally; and
the
term
"Guarantor" means each of the undersigned. individually and
collectively.
(e)
A
''Default'' means the occurrence of an event of default by the Distributor
pursuant to
or in
accordance with the provisions of any of the Contract Documents or the failure
of the Guarantors (or any of them) to perform any covenant agreement contained
in this Guaranty or if any representation or warranty contained in this Guaranty
is found to have been untrue, incomplete or misleading in any material respect
when furnished.
2.
GUARANTY.
The
Guaranty supercedes that certain Guaranty and Pledge Agreement
dated August 20, 2001, by the Guarantor in favor of the Contractor. The
Guarantors jointly and severally, unconditionally and irrevocably, guaranty
to
Contractor the full and prompt payment and performance when due, whether at
maturity or earlier (by reason of acceleration) and at all times thereafter,
of
all of the Obligations, and the undersigned further agree to pay all costs
and
expenses including, without limitation, all court costs and reasonable
attorneys' fees and expenses paid or incurred by the Contractor in endeavoring
to collect all or any part of the Obligations from or in prosecuting any action
against, Distributor or any of the Guarantors. Notwithstanding anything
contained in this Guaranty, the Contractor shall release the Guarantor and
terminate this Guaranty if the
Contractor obtains a replacement guaranty from a third party which is acceptable
to the Contractor in its sole and absolute discretion.
3.
TERMS
AND CONDITIONS. (a) Subject to the provisions of the Contract Documents,
Contractor shall have the exclusive right to determine the application of
payments and credits, if any, received by Contractor from the undersigned,
the
Distributor, the Senior Lender, and any Customer.
(b)
Contractor is authorized, without notice or demand and without affecting the
liability of
any of
the Guarantors, from time to time to (i) renew, extend, accelerate or otherwise
change the time for payment or performance of, or other terms relating to,
the
Obligations or any of them, or otherwise modify, amend or change the terms
of
the Contract Documents or any of them, or any other agreement, document or
instrument now or here after executed by the Distributor and delivered to
Contractor: (ii) accept partial payments on or performance of the Obligations;
and (iii) settle, release, compromise, collect or otherwise liquidate the
Obligations in any manner, without affecting or impairing the Obligations of
the
undersigned.
(c)
At
any time after a Default, Contractor may at its discretion, upon notice to
the
Guarantors
and regardless of the acceptance of any security or collateral for the payment.
appropriate
and apply toward the payment and satisfaction of the Obligations (i) any
indebtedness due or to become due from Contractor to one or more of the
Guarantors; and (ii) any monies, credits or other property belonging to one
or
more of the Guarantors, at any time held by Contractor on deposit or otherwise.
(d)
Contractor shall not be required to take any steps to preserve any rights
against prior parties
(if any) to or in any of the Obligations.
(e)
The
Guarantors agree that to the extent that the Distributor makes a payment(s)
to
Contractor,
which payment(s) are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver
or
any other party under any bankruptcy act, state or federal law, common law
or
equitable case, then to the extent of such payment or repayment, the obligation
intended to be satisfied shall be renewed and continued in full force and effect
as if said payment had not been made, and the Guarantors shall, upon demand
by
Contactor, immediately satisfy such obligation in full in accordance with the
terms of this Guaranty. The Guarantors further agree that any and all claims
of
the Guarantors againstt4e Distributor or against its properties, arising by
reason of any loan, advance, inves1ment or other payment by the undersigned
to
Contractor shall be subordinate and subject in right of payment to the prior
payment, in full, of all sums due pursuant to the Obligations.
(f)
Each
Guarantor assumes responsibility for keeping himself, herself or itself informed
of the financial condition of the Distributor and of all other circumstances
bearing upon the risk of Default. Contractor shall have no duty to advise the
Guarantors of information known to Contractor regarding such condition or
circumstances.
(g)
No
delay on the part of Contractor in the exercise of any right or remedy shall
operate as
a
waiver or constitute a discharge of any of the Guarantors' obligations under
this Guaranty, and no single or partial exercise by Contractor any right or
remedy shall preclude the further exercise to any extent; nor shall any
modification 01:' waiver of any of the provisions of this Guaranty be binding
upon Contractor except as expressly set forth in a writing duly signed and
delivered by an authorized officer of Contractor. Con1:ractors failure at any
time to require strict performance by the Distributor or any other party of
any
after provisions, warranties, terms and conditions contained in the Contract
Documents shall not discharge any of the Guarantors' obligations under this
Guaranty, nor shall it waive, affect or diminish any right of the Contractor
at
any time to demand strict performance and such right shall not be deemed to
have
been waived by any act or knowledge of Contractor unless such waiver is
contained in an instrument in writing, signed by an officer of Contractor
specifying such waiver. No waiver by Contractor any default shall operate as
a
waiver of either any other default or the same default on a future occasion.
and
no action or inaction by Contractor shall in any way affect or impair
Contractor's rights or the obligations of the Guarantors under this Guaranty.
The Guarantors agree that their obligations under this Guaranty will not be
discharge except by complete performance of the Obligations. Any determination
by a court of competent jurisdiction of the sums owing by the Distributor to
Contractor shall be conclusive and binding on the Guarantors irrespective of
whether any of the Guarantors was a party to the suit or action in which such
determination was made.
4.
WARRANTIES AND REPRESENTATIONS.
Each
of
the guarantors jointly and severally, hereby represent and warrant to the:
Contractor that:
(a)
The
execution, delivery, and performance by each Guarantor of this Guaranty will
not
violate any provision of law, any order of any court or other agency of
government, or any agreement or other instrument to which any of the Guarantors
is a party or by which any of the Guarantors is bound or be in conflict with,
result in a breach of or constitute (with due notice or lapse of time, or both)
a. default under any such agreement or oilier instrument, or result in the
creation or imposition of any lien, charge, or encumbrance of any nature
whatsoever upon any of the property or assets of any Guarantor, except as
contemplated by the provisions of this Guaranty; and
(b)
This
Guaranty constitutes the legal, valid and binding obligation of each of the
Guarantors
and is enforceable against each of the Guarantors in accordance with the terms
here of.
5.
DEFAULT. (a) Upon and during the continuance of any Default, Contractor
may,
at
its sole election, proceed directly and at once, without notice, against one
or
more of the Guarantors to collect and recover the full amount or any portion
of
the Obligations, without first proceeding against the Distributor or any other
Guarantor, or any other party or any other person, firm or corporation. All
of
the above rights and powers may be exercised by Contractor without liability,
except the obligation to account for property actually received.
(b)
Any
right to setoff exercised by Contractor shall be deemed to have been exercised
immediately
on the occurrence of a Default, even though such set-off is made or entered
on
the books of Contractor at any subsequent time.
6.
INDEMNIFICATION. The Guarantors will at all times, now and here after, jointly
and
severally, indemnify and hold Contractor harmless from and against all loss
or
damage arising in connection with this Guaranty and against all claims,
liability, demands, actions or suits, and all liabilities, payments, costs,
charges and expenses including, without limitation, attorneys fees and costs
charges by Contractor on account of or in connection with this Guaranty or
the
transactions or assertions of rights contemplated or permitted
hereunder.
7.
MISCELLANEOUS. (a.) This Guaranty shall be binding upon the Undersigned
and
upon
the heirs, executors, successors and assigns of the undersigned and shall insure
to the benefit of Contractor's successors and assigns; all references to the
Distributor and to the undersigned
shall be deemed to include their respective successors, assigns, participants,
receivers or trustees (as the case may be).
(b)
This
Guaranty embodies the entire understanding of the parties pertaining to the
subject
matter hereof and shall constitute a continuing agreement applicable to future
as well as existing transactions between the Contractor and the
Distributor.
(c)
THIS
GUARANTY HAS BEEN DELIVEREDATANDSHALL BE DEEMED TO
HAVE
BEEN MADE IN NORTH BROOK, Illinois, AND SHALL BE INTERPRETED, AND THE RIGHTS
AND
LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE
OF ILLlNOIS, AND AS PART OF THE CONSIDERATION FOR CONTRACTOR'S PERFORMANCE
PURSUANT TO THE CONTRACT DOCUMENTS, THE UNDERSIGNED CONSENT TO THE JURISDICTION
OF ANY LOCAL, STATE ORFEDERAL COURT LOCATED WITHIN THE STATE OF ILLINOIS, AND
FURTHER CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR
REGISTERED MAIL DIRECTED TO THE UNDERSIGNED AT THE ADDRESS STATED HEREIN AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETEDTWO (2) DAYS AFTER THE SAME
SHALL
HAVE BEEN POSTED. THE UNDERSIGNED FURTBER CONSENT TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
(d)
The
headings used in this Guaranty are for the convenience of the reader only;
such
headings
constitute no part whatsoever of the agreement between the parties.
(e)
No
invalidity, irregularity or unenforceability of the Obligations (or any of
them)
hereby
secured Shall affect impair or be a defense to any provision contained in this
Guaranty. If any term, condition or provision of this Guaranty is determined
to
be invalid or unenforceable, such determination shall not affect the validity
or
enforceability of any other terms, condition or provision of this
Guaranty.
(f)
If
this Guaranty shall differ or conflict in terms with any of the Contract
Documents, the
agreement which gives Contractor the greater right, as determined by Contractor
shall prevail
