Exhibit 10.18
GUARANTY
This GUARANTY dated as of November _______, 2001 (the "GUARANTY"), is
given by Xxxxx X. Xxxx, an individual ("GUARANTOR"), in favor of CORNELL CAPITAL
PARTNERS, LP, a Delaware limited partnership ("CORNELL"). Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings set
forth in a Non Negotiable Promissory Note of even date herewith given by Safe
Transportation Systems, Inc., a Florida corporation (the "COMPANY") to Cornell
as amended, restated, supplemented or otherwise modified from time to time, the
"PROMISSORY NOTE").
WHEREAS:
A. The Company and Cornell wish to provide for the funding contemplated
under the Promissory Note in the amount of Forty Six Thousand (U.S.) Dollars and
00/100 ($46,000.00).
B. To induce Cornell to enter into the Promissory Note, the Guarantor
has agreed to provide a full and unconditional guaranty of the payment and
performance obligations of the Company under the Promissory Note and a Pledge
Agreement (the "PLEDGE") of even date herewith among the Company, Cornell and
Guarantor (collectively, the Note, the Pledge and this Guaranty are referred to
as the "TRANSACTION DOCUMENTS").
C. The Guarantor is an affiliate of the Company and the Guarantor
acknowledges that without this Guaranty Cornell would not be willing to enter
into the Promissory Note.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby
agrees as follows:
1. GUARANTY.
1.1 GUARANTY. The Guarantor, as direct obligor and not merely as a
surety, hereby unconditionally, absolutely, and irrevocably guarantees to
Cornell (i) that the Company shall repay to Cornell the principal amount plus
accrued interest within the period of time provided in the Promissory Note, and
all other amounts due to Cornell under the Promissory Note, including, without
limitation, all reasonable fees and costs incurred by the Holder in collecting
or securing or attempting to collect or secure the Promissory Note, including
reasonable attorneys' fees and expenses, whether or not involving litigation
and/or appellate or bankruptcy proceedings (collectively, the "OBLIGATIONS"),
and (ii) the full and prompt performance and payment of all of the Company's
Obligations under the Promissory Note and the other Transaction Documents. If
the Company should default in the payment or performance of any of the
Obligations, the Guarantor, as direct obligor and not merely as a surety, shall
forthwith pay or perform such Obligations without notice or demand by Cornell in
the manner and on the day required by this Guaranty.
1.2 CONTINUING GUARANTY. The Guarantor agrees that its obligations
pursuant to this Section 1 are unconditional, absolute, and irrevocable and
shall not be released, discharged or affected in any way by any circumstances or
condition, including without limitation:
(a) any amendment or modification or other change to any of
the Transaction Documents;
(b) any failure, omission or delay on the part of the Company
to conform or comply with any term of any of the Transaction Documents;
(c) any release or discharge by operation of law of the
Company or any Guarantor from any obligation or agreement contained in any of
the Transaction Documents or this Guaranty; and
(d) any other occurrence, circumstance, happening or event,
whether similar or dissimilar to the foregoing and whether foreseen or
unforeseen, which otherwise might constitute a legal or equitable defense or
discharge of the liabilities of a guarantor or surety or which otherwise might
limit recourse against the Company or the Guarantor.
1.3. GUARANTY OF PAYMENT AND NOT OF COLLECTION. The liability of the
Guarantor shall be continuing, direct and immediate and not conditional or
contingent upon either the pursuit of any remedies against the Company or any
other person or foreclosure of any security interests or liens available to
Cornell, its successors, endorsees or assigns. Cornell may accept any
payment(s), plan for adjustment of debts, plan of reorganization or liquidation,
or plan of composition or extension proposed by, or on behalf of, the Company or
any other guarantor without in any way affecting or discharging the liability of
the Guarantor. If the Obligations are partially paid, the Guarantor shall remain
liable for any balance of such Obligations. This Guaranty shall be revived and
reinstated in the event any payment received by Cornell on any Obligation is
required to be repaid or rescinded under present or future federal or state law
or regulation relating to bankruptcy, insolvency or other relief of debtors.
1.4 DISCHARGE. The Guarantor covenants and agrees that this Guaranty
will not be discharged, except by complete performance of its obligations
contained herein. Notwithstanding anything to the contrary herein, so long as no
amounts of principal, interest or other amounts whatsoever are due or would be
made zero simultaneously with the termination hereof, the Guarantor shall have
the right to terminate this Guaranty at any time by providing written notice of
such termination to Cornell.
1.5 COSTS AND EXPENSES. Without limiting any obligation of the
Guarantor hereunder, the Guarantor agrees to pay all reasonable fees and costs
incurred by Cornell in collecting or securing or attempting to collect or secure
this Guaranty or the Promissory Note, including, without limitation, reasonable
attorneys' fees and expenses, whether or not involving litigation and/or
appellate or bankruptcy proceedings.
1.6 REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and
warrants to Cornell as follows: (a) the Guarantor has full power, right and
authority to enter into and perform his obligations under this Guaranty, and
this Guaranty has been duly executed and delivered by the Guarantor and
constitutes the valid and binding obligation of the Guarantor and is enforceable
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against the Guarantor in accordance with its terms. No permits, approvals or
consents of or notifications to (a) any governmental entities, or (b) any other
persons or entities are necessary in connection with the execution, delivery and
performance by the Guarantor of this Guaranty and the consummation by the
Guarantor of the transactions contemplated hereby. Neither the execution and
delivery of this Guaranty by the Guarantor nor the performance by it of the
transactions contemplated hereby will:
(i) violate or conflict with or result in a breach of any
provision of any law, statute, rule, regulation, order, permit, judgment,
ruling, injunction, decree or other decision (collectively, "RULES") of any
court or other tribunal or any governmental entity or agency binding on the
Guarantor or his properties, or conflict with or cause an event of default under
any contract or agreement of the Guarantor; or
(ii) require any authorization, consent, approval, exemption
or other action by or notice to any court, administrative or governmental body,
person, entity or any other third party.
2. MISCELLANEOUS.
2.1 NOTICES, CONSENTS, ETC. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must be
in writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) trading day after deposit
with a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to Guarantor: Xx. Xxxxx X. Xxxx
c/o Safe Transportation Systems, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, Suite 2000
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Cornell: Cornell Capital Partners, LP
00 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
With Copy to: Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx - Xxxxx 0
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) trading days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
2.2 WAIVER OF PRESENTMENT. To the fullest extent permitted by law and
except as otherwise provided herein, the Guarantor waives demand, presentment,
protest, notice of dishonor, suit against or joinder of any other person, and
all other requirements necessary to charge or hold the Guarantor liable with
respect to this Guaranty.
2.3 SEVERABILITY. If any provision of this Guaranty is, for any reason,
invalid or unenforceable, the remaining provisions of this Guaranty will
nevertheless be valid and enforceable and will remain in full force and effect.
Any provision of this Guaranty that is held invalid or unenforceable by a court
of competent jurisdiction will be deemed modified to the extent necessary to
make it valid and enforceable and as so modified will remain in full force and
effect.
2.4 AMENDMENT AND WAIVER. This Guaranty may be amended, or any
provision of this Guaranty may be waived, provided that any such amendment or
waiver will be binding on a party hereto only if such amendment or waiver is set
forth in a writing executed by the parties hereto. The waiver by any such party
hereto of a breach of any provision of this Guaranty shall not operate or be
construed as a waiver of any other breach.
2.5. HEADINGS. The subject headings of Articles and Sections of this
Guaranty are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
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2.6 ASSIGNMENT. This Guaranty will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, but will not be assignable or delegable by the Guarantor. Except as
otherwise provided herein, this Note shall bind and inure to the benefit of and
be enforceable by the parties and their permitted successors and assigns.
2.7. FURTHER ASSURANCES. Each party will execute all documents and take
such other actions as the other parties may reasonably request in order to
consummate the transactions provided for herein and to accomplish the purposes
of this Guaranty.
2.8 THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or entity, other than
the stated beneficiaries of this Guaranty and their respective permitted
successors and assigns, any rights or remedies under or by reason of this
Guaranty.
2.9 NO STRICT CONSTRUCTION. The language used in this Guaranty will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
2.10 EVENT OF DEFAULT. For purposes of this Guaranty, an event of
default shall be deemed to have occurred hereunder:
(a) If the Company should default under the Promissory Note or
in the payment or performance of any of the Obligations, the Guarantor shall
fail for any reason or for no reason, to forthwith pay or perform such
Obligations without notice or demand by Cornell in the manner and on the day
required this Guaranty; or
(b) if the Guarantor makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts generally as they
become due; or an order, judgment or decree is entered adjudicating the
Guarantor bankrupt or insolvent; or any order for relief with respect to the
Guarantor is entered under any bankruptcy or insolvency laws; or the Guarantor
petitions or applies to any tribunal for the appointment of a custodian,
trustee, receiver or liquidator of the Guarantor of any substantial part of the
assets of the Guarantor, or commences any proceeding relating to the Guarantor
under any bankruptcy reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction; or any such petition
or application is filed, or any such proceeding is commenced, against the
Guarantor.
(c) if the Guarantor should default in any other obligation
set forth in this Agreement.
(d) if the Guarantor should default in the Pledge Agreement.
Upon an event of default, all of the obligations of the Guarantor hereunder
shall be immediately due and payable without any action on the part of Cornell,
and Cornell shall be entitled to seek and institute any and all remedies
available to it. No remedy conferred under this Guaranty upon the Cornell is
intended to be exclusive of any other remedy available to Cornell, pursuant to
the terms of this Guaranty or otherwise. No single or partial exercise by
Cornell of any right, power or remedy hereunder shall preclude any other or
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further exercise thereof. The failure of Cornell to exercise any right or remedy
under this Guaranty or otherwise, or delay in exercising such right or remedy,
shall not operate as a waiver thereof.
2.11 REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.
Cornell's remedies provided in this Guaranty shall be cumulative and in addition
to all other remedies available to the Cornell under this Guaranty or otherwise,
at law or in equity (including a decree of specific performance and/or other
injunctive relief), no remedy of Cornell contained herein shall be deemed a
waiver of compliance with the provisions giving rise to such remedy and nothing
herein shall limit Cornell's right to pursue actual damages for any failure by
the Guarantor to comply with the terms of this Guaranty. Every right and remedy
of the Guarantor under any document executed in connection with this
transaction, including but not limited to this Guaranty and the Transaction
Documents or under applicable law may be exercised from time to time and as
often as may be deemed expedient by Cornell. The Guarantor acknowledges that a
breach by it of its obligations hereunder will cause irreparable harm to Cornell
and that the remedy at law for any such breach may be inadequate. The Guarantor
therefore agrees that, in the event of any such breach or threatened breach,
Cornell shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach, and specific performance without the
necessity of showing economic loss and without any bond or other security being
required.
2.12 GOVERNING LAW; JURISDICTION. All questions concerning the
construction, validity, enforcement and interpretation of this Guaranty shall be
governed by the internal laws of the State of New Jersey, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of New Jersey or any other jurisdictions) that would cause the application of
the laws of any jurisdictions other than the State of New Jersey. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Essex County, for the adjudication of any dispute
hereunder or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Guaranty and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
2.13 WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR CORNELL TO LOAN
TO THE COMPANY THE MONIES UNDER THE PROMISSORY NOTE AND TO ACCEPT THIS GUARANTY,
THE GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS
ASSOCIATED WITH THIS TRANSACTION.
2.14 ENTIRE AGREEMENT. This Guaranty (including the recitals hereto),
the Transaction Documents and the Warrant of even date herewith given by the
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Company to Cornell set forth the entire understanding of the parties with
respect to the subject matter hereof, and shall not be modified or affected by
any offer, proposal, statement or representation, oral or written, made by or
for any party in connection with the negotiation of the terms hereof, and may be
modified only by instruments signed by all of the parties hereto.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be signed
as of the date first written above.
GUARANTOR:
By:
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Name: Xxxxx X. Xxxx
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