EXHIBIT 10.1.4
$100,000 Demand Note
between Datalinc Ltd. and Blue Chip Capital Fund Limited
dated June 27, 1997
DEMAND NOTE
$100,0000 Cincinnati, Ohio
June 27, 1997
For value received, the undersigned, Datalinc, Ltd., a Florida limited
partnership (the "Borrower"), promises to pay to the order of BLUE CHIP CAPITAL
FUND LIMITED PARTNERSHIP (the "Investor") the principal sum of $100,000. The
unpaid principal amount of this note shall bear interest at the rate of ten
percent (10%) per annum.
PAYMENT. The unpaid principal amount together with the interest accrued
thereon, shall be payable upon demand, in lawful money of the United States of
America and in immediately available funds, at 2000 PNC Center, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, or at such other place as hereafter may be
designated by written notice from the holder of the Borrower. Interest shall be
calculated on the basis of a 360-day year for the actual number of days
principal is unpaid.
PRE-PAYMENT. The Borrower shall have the privilege of pre-paying this note,
in part or in full, at any time without penalty; payment shall be applied first
to the payment of interest and the balance to principal.
MISCELLANEOUS. Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by the Borrower.
Whenever in this note reference is made to the "Borrower" or the
"Investor", such reference shall be deemed to include, as applicable, a
reference to their respective successors and assigns. The provisions of this
note shall be binding upon and shall inure to the benefit of such successors and
assigns. The Borrower's successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for the Borrower.
This note shall be governed by and construed in accordance with the laws of
the State of Ohio.
COGNOVIT NOTE. The Borrower hereby irrevocably authorizes and empowers any
attorney-at-law to appear for the Borrower in any action upon or in connection
with this note at any time after any obligation under this note becomes due, as
herein provided, in any court in or of the State of Ohio or elsewhere, and
waives the issuance and service or process with respect thereto, and irrevocably
authorizes and empowers any such attorney-at-law to confess judgment in favor of
the Investor against the Borrower, the amount due hereon, plus interest as
herein provided, and all costs of collection, and waives and releases all errors
in any said proceedings and judgments and all rights of appeal from the judgment
rendered. The Borrower agrees and consents that the attorney confessing judgment
on behalf of the Borrower hereunder may also be counsel to the Investor and the
Borrower hereby further waives any conflict of interest which might otherwise
arise and consents to the Investor paying such confessing attorney a legal fee
or allowing such attorneys' fees to be paid from proceeds of collection of this
note.
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WARNING -- BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWER OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CASE.
********************************************************************************
DATALINC, LTD.
By: Integrated Communications Network, Inc.
its General Partner
/s/Xxxx X. Xxxxxxx
By: _____________________
Xxxx X. Xxxxxxx, Chairman of the Board
/s/Xxxx X. Xxxxxxxx
By: ______________________
Xxxx X. Xxxxxxxx, President
2
GUARANTY
For value received and in consideration of a loan (the "Loan") of $100,000
made to Datalinc, Ltd. ("Borrower") by Blue Chip Capital Fund Limited
Partnership ("Lender") on the date hereof pursuant to that certain Demand Note
of even date herewith evidencing the Loan, as the same may be amended from time
to time (the "Note"), Xxxx X. Xxxxxxx ("Guarantor") hereby unconditionally the
full and prompt payment of the principal and interest payable under the Note and
of all of the indebtedness, liabilities and obligations of every kind and nature
of Borrower to Lender, howsoever created, arising out of or evidenced by the
Note, whether direct or indirect, absolute or contingent, joint or several, now
or hereafter existing, or due or to become due, and howsoever owned, held or
acquired by Lender (the "Obligations"), when due, whether at maturity or earlier
by reason of demand, acceleration or otherwise, and at all times thereafter.
Guarantor further agrees to pay all costs and expenses, including, without
limitation, all court costs and attorneys' and paralegals' fees and expenses,
paid or incurred by Lender in endeavoring to collect or enforce all or any part
of the Obligations from, or in prosecuting any action against, Borrower,
Guarantor or any other guarantor of all or any part of the Obligations.
Guarantor hereby agrees that, except as hereinafter provided, Guarantor's
obligations under this Guaranty shall be unconditional, irrespective of (i) the
validity or enforceability of the Obligations or of any promissory note or other
document evidencing all or any part of the Obligations, (ii) the absence of any
attempt to collect the Obligations from Borrower or any other guarantor or other
action to enforce the same, (iii) the waiver or consent by Lender with respect
to any provision of any instrument evidencing the Obligations, or any part
thereof, or any other agreement now or hereafter executed by Borrower and
delivered to Lender, (iv) failure by Lender to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any security or
collateral for the Obligations, (v) Lender's election, in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C.
para. 101 et seq.) (the "Bankruptcy Code"), of the application of Section
1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security
interest by Borrower, as debtor-in-possession, under Section 364 of the
Bankruptcy code, (vii) the disallowance of all or any portion of Lender's
claim(s) for repayment of the Obligations under Section 502 of the Bankruptcy
code, or (viii) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of receivership or bankruptcy of Borrower,
protest or notice with respect to the Obligations and all demands whatsoever and
convenants that this Guaranty will not be discharged, except by complete
performance of the obligations contained herein. Upon any default by Borrower,
Lender may, at its sole election, proceed directly and at once, without notice,
against Guarantor to collect and recover the full amount or any portion of the
Obligations, without first proceeding against Borrower or any other person, firm
or corporation, or against any security or collateral for the Obligations.
Lender shall have the exclusive right to determine the application of payments
and credits, if any, from Guarantor, Borrower or from any other person, firm or
corporation, on account of the Obligations or of any other liability of
Guarantor to Lender.
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Lender is hereby authorized, without notice or demand and without affecting
the liability of Guarantor hereunder, to, from time to time, (i) renew, extend,
accelerate or otherwise change the time for payment of, or other terms relating
to, the Obligations, or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument now or hereafter
executed by Borrower and delivered to Lender; (ii) accept partial payments on
the Obligations; (iii) take and hold security or collateral for the payment of
this Guaranty, any other guarantees of the Obligations or other liabilities of
Borrower and the Obligations guaranteed hereby, and exchange, enforce, waive and
release any such security or collateral; (iv) apply such security or collateral
and direct the order or manner of sale thereof as in its sole discretion it may
determine; and (v) settle, release, compromise, collect or otherwise liquidate
the Obligations and any security or collateral therefore an any manner, without
affecting or impairing the obligations of the Guarantor hereunder.
At any time after maturity of the Obligations, Lender may, in its sole
discretion, without notice to guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply toward the
payment of the Obligations (i) any indebtedness due or to become due from Lender
to Guarantor, and (ii) any moneys, credits, deposits, account balances or other
property belonging to Guarantor, now existing or at any time held by or coming
into the possession Lender or any affiliate of Lender.
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of Borrower, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of the
Obligations and of all other circumstances bearing upon the risk of nonpayment
of the Obligations or any part thereof that diligent inquiry would reveal and
Guarantor hereby agrees that Lender shall have no duty to advise Guarantor of
information known to Lender regarding such condition or any such circumstances.
In the event Lender, in its sole discretion, undertakes at any time or from time
to time to provide any such information to Guarantor, Lender shall be under no
obligation (i) to undertake any investigation not a part of its regular business
routine, (11) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, Lender wishes to maintain confidential,
or (111) to make any other or future disclosures of such information or any
other information to Guarantor. The Guarantor hereby represents and warrants
that any personal financial statements which the Guarantor has delivered to
Lender fairly present the Guarantor's assets and liabilities as of the date
thereof.
Guarantor hereby further agrees not to sell, lease, convey, transfer or
shift any of his property or assets (i) with the intent or effect of sheltering
such property or assets from Guarantor's obligations under this Guaranty and
(ii) unless such transaction is on fair and reasonable terms.
Guarantor consents and agrees that Lender shall be under no obligation to
xxxxxxxx any assets in favor of Guarantor or against or in payment of any or all
of the Obligations. Guarantor further agrees that, to the extent that Borrower
makes a payment or payments to Lender, or Lender receives any proceeds of
collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Borrower, its estate, trustee, receiver or any other
party, including, without limitation, Guarantor, under any bankruptcy law, state
or federal law, common law or equitable cause, then to the extent of such
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payment or repayment, the Obligations or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred.
Guarantor irrevocably and permanently waives, and will not attempt to
exercise in any way, any rights which Guarantor might otherwise have had or
acquired against Lender or Borrower or any other party by way of subrogation or
otherwise because of any payment made by Borrower or Guarantor hereunder or
otherwise, Guarantor waives any right to enforce any remedy which Lender now has
or may hereafter have against Borrower, any endorser or any other guarantor of
all or any part of the Obligations, and Guarantor waives any benefit of, and any
right to participate in, any security or collateral given to Lender to secure
payment of the Obligations or any other liability of Borrower to Lender.
Guarantor also hereby waives any claim, right or remedy which Guarantor may now
have or hereafter acquire against the performance by Guarantor hereunder,
including, without limitation, any claim, remedy or right to subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of Lender against borrower or any security which
Lender now has or hereafter acquires, whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law, or otherwise.
Guarantor further agrees that any and all claims of Guarantor against Borrower,
any endorser or any other guarantor of all or any part of the Obligations, or
against any of their respective properties, for whatever reason arising, shall
be subordinate and subject in right of payment to the prior payment, in full, of
all principal and interest, all reasonable costs of collection and any other
liabilities or obligations owing to Lender by Borrower which may arise either
with respect to or on any note, instrument, document, item, agreement or other
writing heretofore, now or hereafter delivered to Lender. Guarantor also waives
all setoffs and counterclaims and all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty. Guarantor further waives all notices
of the existence, creation or incurring of new or additional indebtedness,
arising either from additional loans extended to Borrower or otherwise, and also
waives all notices that the principal amount, or any portion thereof, and/or any
interest on any instrument or document evidencing all or any part of the
Obligations is due, notices of any and all proceedings to collect from the
maker, any endorser or any other guarantor of all or any part of the
Obligations, or from anyone else, and, to the extent permitted by law, notices
of exchange, sale, surrender or other handling of any security or collateral
given to Lender to secure payment of the Obligations.
No delay on the part of Lender in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Lender of any
right or remedy shall preclude any further exercise thereof, nor shall any
modification or waiver of any of the provisions of this Guaranty be binding upon
Lender, except as expressly set forth in a writing duly signed and delivered on
Lender's behalf by an authorized officer or agent of Lender. Lender's failure at
any time or times hereafter to require strict performance by Borrower or
Guarantor of any of the provisions, warranties, terms and conditions contained
in any promissory note, security agreement, agreement, guaranty, instrument or
document now or at any time or times hereafter executed by Borrower or Guarantor
and delivered to Lender shall not waive, affect or diminish any right of Lender
at any time or times hereafter to demand strict performance thereof and such
right shall not be deemed to have been waived by any act or knowledge of Lender,
its agents, officers or employees, unless such waiver is contained in an
5
instrument in writing signed by an officer or agent of Lender and directed to
Borrower specifying such waiver. No waiver by Lender of any default shall
operate as a waiver of any other default or the same default on a future
occasion, and no action by Lender permitted hereunder shall in any way affect or
impair Lender's rights or the obligations of Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by Borrower to Lender shall be conclusive and
binding on Guarantor irrespective of whether Guarantor was a party to the suit
or action in which such determination was made. Guarantor agrees, consents to
and confirms that any extension of any statute of limitations resulting from any
payment of the obligations by Borrower, any guarantor or any other person and
affecting enforcement or collection of the obligations of Borrower, or of the
liabilities of Guarantor under this Guaranty shall to the same degree also
extend any Statute of Limitations affecting enforcement and collection of the
liabilities under this Guaranty.
This Guaranty shall be binding upon Guarantor and upon his successors and
assigns, heirs and legal representatives of Guarantor and shall inure to the
benefit of Lender and its successors and assigns. All references herein to
Borrower shall be deemed to include its successors and assigns, including,
without limitation, a receiver, trustee or debtor in possession of or for
Borrower. All references to the singular shall be deemed to 'include the plural
where the context so requires.
This Guaranty has been delivered and accepted at and shall be deemed to
have been made at Cincinnati, Ohio. This Guaranty shall be interpreted, and the
rights and liabilities of the parties hereto determined, in accordance with the
local laws of the State of Ohio and all other laws of mandatory application.
Wherever possible each provision of this Guaranty shall be Interpreted in
such manner as to be effective and valid under applicable laws, but if any
provision of this Guaranty shall be prohibited by or invalid under such 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.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR LENDER TO ACCEPT THIS GUARANTY AND TO
EXTEND CREDIT TO BORROWER, GUARANTOR AGREES THAT ANY ACTION, SUIT OR PROCEEDING
IN RESPECT OF OR ARISING OUT OF THIS GUARANTY, IT'S VALIDITY OR PERFORMANCE, AT
THE SOLE OPTION OF LENDER, ITS SUCCESSORS AND ASSIGNEES, SHALL BE INITIATED AND
PROSECUTED AS TO ALL PARTIES AND THEIR HEIRS, SUCCESSORS AND ASSIGNS AT
CINCINNATI, OHIO. LENDER AND GUARANTOR EACH CONSENTS TO AND SUBMITS TO THE
EXERCISE OF JURISDICTION OVER ITS PERSON BY ANY COURT SITUATED AT CINCINNATI,
OHIO HAVING JURISDICTION OVER THE SUBJECT MATTER, WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED MAIL DIRECTED TO GUARANTOR AND LENDER AT THEIR RESPECTIVE ADDRESSES AS
SET FORTH BELOW (OR SUCH OTHER ADDRESS AS A PARTY MAY FROM TIME TO TIME
DESIGNATE FOR ITSELF BY NOTICE TO THE OTHER PARTY) OR AS OTHERWISE PROVIDED
UNDER THE LAWS OF THE STATE OF OHIO. GUARANTOR AND LENDER EACH WAIVES TRIAL BY
JURY, ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF
ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
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Guarantor hereby irrevocably authorizes and empowers any attorney-at-law to
appear for Guarantor in any action upon or in connection with this Guaranty at
any time after the Obligations guaranteed hereby become due, as herein provided,
in any court in or of the State of Ohio or elsewhere, and waives the issuance of
service of process in connection therewith, and irrevocably authorizes and
empowers any such attorney-at-law to confess judgment in favor of Lender against
Guarantor for the amount of such Obligations and costs of collection, and waives
and releases all errors in said proceedings and judgments and waives all right
of appeal from the judgment rendered. Guarantor agrees and consents that the
attorney confessing judgment on behalf of Guarantor hereunder may also be
counsel to Lender and/or affiliates of Lender, and Guarantor hereby further
waives any conflict of interest which might otherwise arise and consents to
Lender paying such confessing attorney a legal fee or allowing such attorneys'
fees to be paid from proceeds of collection of this Guaranty and/or any and all
collateral and security for the Obligations.
IN WITNESS WHEREOF, this Guaranty has been duly executed by Guarantor as of
the 27th day of June, 1997.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
Guarantor:
/s/Xxxx X. Xxxxxxx
___________________________
Xxxx X. Xxxxxxx
Address: 000 Xxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Accepted in Cincinnati, Ohio, as of the
27th day of June, 1997
BLUE CHIP CAPITAL FUND LIMITED PARTNERSHIP
c/o Blue Chip Venture Company
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
By: BLUE CHIP VENTURE COMPANY
its General Partner
By:_____________________________
Name:___________________________
Title:__________________________
7
GUARANTY
For value received and in consideration of a loan (the "Loan") of $100,000
made to Datalinc, Ltd. ("Borrower") by Blue Chip Capital Fund Limited
Partnership ("Lender") on the date hereof pursuant to that certain Demand Note
of even date herewith evidencing the Loan, as the same may be amended from time
to time (the "Note"), Xxxx X. Xxxxxxxx ("Guarantor") hereby unconditionally
guarantees the full and prompt payment of the principal and interest payable
under the Note and of all of the indebtedness, liabilities and obligations of
every kind and nature of Borrower to Lender, howsoever created, arising out of
or evidenced by the Note, whether direct or indirect, absolute or contingent,
joint or several, now or hereafter existing, or due or to become due, and
howsoever owned, held or acquired by Lender (the "Obligations"), when due,
whether at maturity or earlier by reason of demand, acceleration or otherwise,
and at all times thereafter. Guarantor further agrees to pay all costs and
expenses, including, without limitation, all court costs and attorneys' and
paralegals' fees and expenses, paid or incurred by Lender in endeavoring to
collect or enforce all or any part of the Obligations from, or in prosecuting
any action against, Borrower, Guarantor or any other guarantor of all or any
part of the Obligations.
Guarantor hereby agrees that, except as hereinafter provided, Guarantor's
obligations under this Guaranty shall be unconditional, irrespective of (i) the
validity or enforceability of the Obligations or of any promissory note or other
document evidencing all or any part of the Obligations, (ii) the absence of any
attempt to collect the Obligations from Borrower or any other guarantor or other
action to enforce the same, (iii) the waiver or consent by Lender with respect
to any provision of any instrument evidencing the Obligations, or any part
thereof, or any other agreement now or hereafter executed by Borrower and
delivered to Lender, (iv) failure by Lender to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any security or
collateral for the Obligations, (v) Lender's election, in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C.
para. 101 et seq.) (the "Bankruptcy Code"), of the application of Section
1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security
interest by Borrower, as debtor-inpossession, under Section 364 of the
Bankruptcy code, (vii) the disallowance of all or any portion of Lender's
claim(s) for repayment of the Obligations under Section 502 of the Bankruptcy
code, or (viii) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of receivership or bankruptcy of Borrower,
protest or notice with respect to the Obligations and all demands whatsoever and
convenants that this Guaranty will not be discharged, except by complete
performance of the obligations contained herein. Upon any default by Borrower,
Lender may, at its sole election, proceed directly and at once, without notice,
against Guarantor to collect and recover the full amount or any portion of the
Obligations, without first proceeding against Borrower or any other person, firm
or corporation, or against any security or collateral for the Obligations.
Lender shall have the exclusive right to determine the application of payments
and credits, if any, from Guarantor, Borrower or from ally other person, firm or
corporation, on account of the Obligations or of any other liability of
Guarantor to Lender.
8
Lender is hereby authorized, without notice or demand and without affecting
the liability of Guarantor hereunder, to, from time to time, (1) renew, extend,
accelerate or otherwise change the time for payment of, or other terms relating
to, the Obligations, or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument now or hereafter
executed by Borrower and delivered to Lender; (ii) accept partial payments on
the Obligations; (iii) take and hold security or collateral for the payment of
this Guaranty, any other guarantees of the Obligations or other liabilities of
Borrower and the Obligations guaranteed hereby, and exchange, enforce, waive and
release any such security or collateral; (iv) apply such security or collateral
and direct the order or manner of sale thereof as in its sole discretion it may
determine; and (v) settle, release, compromise, collect or otherwise liquidate
the Obligations and any security or collateral therefore an any manner, without
affecting or impairing the obligations of the Guarantor hereunder.
At any time after maturity of the Obligations, Lender may, in its sole
discretion, without notice to guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply toward the
payment of the Obligations (i) any indebtedness due or to become due from Lender
to Guarantor, and (ii) any moneys, credits, deposits, account balances or other
property belonging to Guarantor, now existing or at any time held by or coming
into the possession Lender or any affiliate of Lender.
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of Borrower, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of the
Obligations and of all other circumstances bearing upon the risk of nonpayment
of the Obligations or any part thereof that diligent inquiry would reveal and
Guarantor hereby agrees that Lender shall have no duty to advise Guarantor of
information known to Lender regarding such condition or any such circumstances.
In the event Lender, in its sole discretion, undertakes at any time or from time
to time to provide any such information to Guarantor, Lender shall be under no
obligation (i) to undertake any investigation not a part of its regular business
routine, (ii) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, Lender wishes to maintain confidential,
or (iii) to make any other or future disclosures of such information or any
other information to Guarantor. The Guarantor hereby represents and warrants
that any personal financial statements which the Guarantor has delivered to
Lender fairly present the Guarantor's assets and liabilities as of the date
thereof.
Guarantor hereby further agrees not to sell, lease, convey, transfer or
shift any of his property or assets (i) with the intent or effect of sheltering
such property or assets from Guarantor's obligations under this Guaranty and
(ii) unless such transaction is on fair and reasonable terms.
Guarantor consents and agrees that Lender shall be under no obligation to
xxxxxxxx any assets in favor of Guarantor or against or in payment of any or all
of the Obligations. Guarantor further agrees that, to the extent that Borrower
makes a payment or payments to Lender, or Lender receives any proceeds of
collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Borrower, its estate, trustee, receiver or any other
party, including, without limitation, Guarantor, under any bankruptcy law, state
or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Obligations or part thereof which has been paid,
9
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred.
Guarantor irrevocably and permanently waives, and will not attempt to
exercise in any way, any rights which Guarantor might otherwise have had or
acquired against Lender or Borrower or any other party by way of subrogation or
otherwise because of any payment made by Borrower or Guarantor hereunder or
otherwise, Guarantor waives any right to enforce any remedy which Lender now has
or may hereafter have against Borrower, any endorser or any other guarantor of
all or any part of the Obligations, and Guarantor waives any benefit of, and any
right to participate in, any security or collateral given to Lender to secure
payment of the Obligations or any other liability of Borrower to Lender.
Guarantor also hereby waives any claim, right or remedy which Guarantor may now
have or hereafter acquire against the performance by Guarantor hereunder,
including, without limitation, any claim, remedy or right to subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of Lender against borrower or any security which
Lender now has or hereafter acquires, whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law, or otherwise.
Guarantor further agrees that any and all claims of Guarantor against Borrower,
any endorser or any other guarantor of all or any part of the Obligations, or
against any of their respective properties, for whatever reason arising, shall
be subordinate and subject in right of payment to the prior payment, in full, of
all principal and interest, all reasonable costs of collection and any other
liabilities or obligations owing to Lender by Borrower which may arise either
with respect to or on any note, instrument, document, item, agreement or other
writing heretofore, now or hereafter delivered to Lender. Guarantor also waives
all setoffs and counterclaims and all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty. Guarantor further waives all notices
of the existence, creation or incurring of new or additional indebtedness,
arising either from additional loans extended to Borrower or otherwise, and also
waives all notices that the principal amount, or any portion thereof, and/or any
interest on any instrument or document evidencing all or any part of the
Obligations is due, notices of any and all proceedings to collect from the
maker, any endorser or any other guarantor of all or any part of the
Obligations, or from anyone else, and, to the extent permitted by law, notices
of exchange, sale, surrender or other handling of any security or collateral
given to Lender to secure payment of the Obligations.
No delay on the part of Lender in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Lender of any
right or remedy shall preclude any further exercise thereof, nor shall any
modification or waiver of any of the provisions of this Guaranty be binding upon
Lender, except as expressly set forth in a writing duly signed and delivered on
Lender's behalf by an authorized officer or agent of Lender. Lender's failure at
any time or times hereafter to require strict performance by Borrower or
Guarantor of any of the provisions, warranties, terms and conditions contained
in any promissory note, security agreement, agreement, guaranty, instrument or
document now or at any time or times hereafter executed by Borrower or Guarantor
and delivered to Lender shall not waive, affect or diminish any right of Lender
at any time or times hereafter to demand strict performance thereof and such
right shall not be deemed to have been waived by any act or knowledge of Lender,
its agents, officers or employees, unless such waiver is contained in an
instrument in writing signed by an officer or agent of Lender and directed to
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Borrower specifying such waiver. No waiver by Lender of any default shall
operate as a waiver of any other default or the same default on a future
occasion, and no action by Lender permitted hereunder shall in any way affect or
impair Lender's rights or the obligations of Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by Borrower to Lender shall be conclusive and
binding on Guarantor irrespective of whether Guarantor was a party to the suit
or action in which such determination was made. Guarantor agrees, consents to
and confirms that any extension of any statute of limitations resulting from any
payment of the obligations by Borrower, any guarantor or any other person and
affecting enforcement or collection of the obligations of Borrower, or of the
liabilities of Guarantor under this Guaranty shall to the same degree also
extend any Statute of Limitations affecting enforcement and collection of the
liabilities under this Guaranty.
This Guaranty shall be binding upon Guarantor and upon his successors and
assigns, heirs and legal representatives of Guarantor and shall inure to the
benefit of Lender and its successors and assigns. All references herein to
Borrower shall be deemed to include its successors and assigns, including,
without limitation, a receiver, trustee or debtor in possession of or for
Borrower. All references to the singular shall be deemed to include the plural
where the context so requires.
This Guaranty has been delivered and accepted at and shall be deemed to
have been made at Cincinnati, Ohio. This Guaranty shall be interpreted, and the
rights and liabilities of the parties hereto determined, in accordance with the
local laws of the State of Ohio and all other laws of mandatory application.
Wherever possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable laws, but if any
provision of this Guaranty shall be prohibited by or invalid under such 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.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR LENDER TO ACCEPT THIS GUARANTY
AND TO EXTEND CREDIT TO BORROWER, GUARANTOR AGREES THAT ANY ACTION, SUIT OR
PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS GUARANTY, ITS VALIDITY OR
PERFORMANCE, AT THE SOLE OPTION OF LENDER, ITS SUCCESSORS AND ASSIGNEES, SHALL
BE INITIATED AND PROSECUTED AS TO ALL PARTIES AND THEIR HEIRS, SUCCESSORS AND
ASSIGNS AT CINCINNATI, OHIO. LENDER AND GUARANTOR EACH CONSENTS TO AND SUBMITS
TO THE EXERCISE OF JURISDICTION OVER ITS PERSON BY ANY COURT SITUATED AT
CINCINNATI, OHIO HAVING JURISDICTION OVER THE SUBJECT MATTER, WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY CERTIFIED MAIL DIRECTED TO GUARANTOR AND LENDER AT THEIR
RESPECTIVE ADDRESSES AS SET FORTH BELOW (OR SUCH OTHER ADDRESS AS A PARTY MAY
FROM TIME TO TIME DESIGNATE FOR ITSELF BY NOTICE TO THE OTHER PARTY) OR AS
OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF OHIO. GUARANTOR AND LENDER
EACH WAIVES TRIAL BY JURY, ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT.
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Guarantor hereby irrevocably authorizes and empowers any attorney-at-law to
appear for Guarantor in any action upon or in connection with this Guaranty at
any time after the Obligations guaranteed hereby become due, as herein provided,
in any court in or of the State of Ohio or elsewhere, and waives the issuance of
service of process in connection therewith, and irrevocably authorizes and
empowers any such attorney-at-law to confess judgment in favor of Lender against
Guarantor for the amount of such Obligations and costs of collection, and waives
and releases all errors in said proceedings and judgments and waives all right
of appeal from the judgment rendered. Guarantor agrees and consents that the
attorney confessing judgment on behalf of Guarantor hereunder may also be
counsel to Lender, and Guarantor hereby and/or affiliates of Lender, and
Guarantor further waives any conflict of interest which might otherwise arise
and consents to Lender paying such confessing attorney a legal fee or allowing
such attorneys' fees to be paid from proceeds of collection of this Guaranty
and/or any and all collateral and security for the Obligations.
IN WITNESS WHEREOF, this Guaranty has been duly executed by Guarantor as of the
27th day of June, 1997.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
Guarantor
/s/_______________________
By: Xxxx X. Xxxxxxxx
Address: 000 0xx Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Accepted in Cincinnati, Ohio, as of the
27th day of June, 1997
BLUE CHIP CAPITAL FUND LIMITED PARTNERSHIP
c/o Blue Chip Venture Company
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
By: BLUE CHIP VENTURE COMPANY
its General Partner
By: ___________________________
Name: _________________________
Title: ________________________
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