EXHIBIT 10.28
IBM Credit Corporation
GUARANTY
(By Corporation)
TO: IBM CREDIT CORPORATION DATE November 8, 2000
0000 XxxxxXxxx Xxxxxxx
Xxxxxxx, XX 00000
Gentlemen:
In consideration of credit and financing accommodations granted or to
be granted by you to Datatec Industries, Inc. ("Dealer"), which is in the best
interest of the undersigned, and for other good and valuable consideration
received, the undersigned guaranties to you the prompt and unconditional
performance and payment by Dealer of any and all obligations, liabilities,
contracts, mortgages, notes, trust receipts, secured transactions, inventory
financing and security agreements, and commercial paper on which Dealer is in
any manner obligated, heretofore, now, or hereafter owned, contracted or
acquired by you ("Liabilities"), whether the Liabilities are individual, joint,
several, primary, secondary, direct, contingent or otherwise. The undersigned
also agrees to indemnify you and hold you harmless against any losses you may
sustain and expenses you may incur, suffer or be liable for as a result of or in
any way arising out of, following, or consequential to any transactions with or
for the benefit of Dealer.
If Dealer fails to pay or perform any Liabilities to you when due, all
Liabilities to you shall then be deemed to have become immediately due and
payable, and the undersigned shall then pay upon demand the full amount of all
sums owed to you by Dealer, together with all expenses, including reasonable
attorney's fees, which shall be deemed to be not less than fifteen percent of
the debt or the amount legally permitted if placed with an attorney for
collection.
The liability of the undersigned is direct and unconditional and shall
not be affected by any extension, renewal or other change in the terms of
payment of any security agreement or any other agreement between you and Dealer,
or any change in the manner, place or terms of payment or performance thereof,
or the release, settlement or compromise of or with any party liable for the
payment or performance thereof, the release or non-perfection of any security
thereunder, any change in Dealer's financial condition, or the interruption of
business relations between you and Dealer. This Guaranty shall continue for so
long as any sums owing to you by Dealer remain outstanding and unpaid, unless
terminated in the manner provided below. The undersigned acknowledges that its
obligations hereunder are in addition to and independent of any agreement or
transaction between you and Dealer or any other person creating or reserving any
lien, encumbrance or security interest in any property of Dealer or any other
person as security for any obligation of Dealer. You need not exhaust your
rights or recourse against Dealer or any other person or any security you may
have at any time before being entitled to payment from the undersigned.
This Guaranty is assignable, shall be construed liberally in your
favor, and shall inure to the benefit of and bind your and our respective
successors, personal representatives and assigns, and also benefit any of your
existing or future affiliates that may extend credit to Dealer.
If Dealer hereafter is incorporated, acquired by a corporation,
dissolved, or otherwise undergoes any change in its management, ownership,
identity or organizational structure, this Guaranty shall continue to extend to
any Liabilities of the Dealer or such resulting corporation, dissolved
corporation, or new or changed legal entity or identity to you.
The undersigned waives: notice of the acceptance of this Guaranty, and
of presentment, demand and protest; notices of nonpayment, nonperformance, any
right of contribution from other guarantors, and dishonor; notices of amount of
indebtedness of Dealer outstanding at any time; notices of the number and amount
of advances made by you to Dealer in reliance on this Guaranty; notices of any
legal proceedings against Dealer; notice and hearing as to any prejudgment
remedies; and any other demands and notices
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required by law. The undersigned further waives all rights of set-off and all
counterclaims against you or Dealer. The undersigned also waives any and all
rights in and notices or demands relating to any collateral now or hereafter
securing any of the Liabilities, including, but not limited to, all rights,
notices or demands relating, whether directly or indirectly, to the sale or
other disposition of any or all of such collateral or the manner of such sale or
other disposition. All waivers by the undersigned herein shall survive any
termination or revocation of this Guaranty. The undersigned authorizes you to
sell at public or private sale or otherwise realize upon the collateral now or
hereafter securing any of the Liabilities, in such manner and upon such terms
and conditions as you deem best, all without advertisement or notice to Dealer,
the undersigned, or any third parties. The undersigned further authorizes you to
deal with the proceeds of such collateral as provided in your agreement with
Dealer, without prejudice to your claim for any deficiency and free from any
right or redemption on the part of Dealer, the undersigned or any third parties,
which right or redemption is hereby waived together with every formality
prescribed by custom or by law in relation to any such sale or other
realization.
The undersigned further agrees that all of its right, title and
interest in, to and under any loans, notes, debts and all other liabilities and
obligations whatsoever owed by Dealer to the undersigned, whether heretofore or
hereafter created or incurred and for whatever amount, and all security
therefor, shall be now and hereafter at all times fully subordinated to all
Liabilities. The undersigned will not ask, demand or xxx for, or take or receive
payment of, all or any part of such loans, notes, debts or any other liabilities
or obligations whatsoever or any security therefor, until and unless all of the
Liabilities are paid, performed and fully satisfied.
The undersigned has made an independent investigation of the financial
condition of Dealer and gives this Guaranty based on that investigation and not
upon any representations made by you. The undersigned acknowledges that it has
access to current and future Dealer financial information which will enable the
undersigned to continuously remain informed of Dealer's financial condition. The
undersigned also consents to and agrees that the obligations under this Guaranty
shall not be affected by your: subsequent increases or decreases in the credit
line that you may grant to Dealer; substitutions, exchanges or releases of all
or any part of the collateral now or hereafter securing any of the Liabilities;
sales or other dispositions of any or all of the collateral now or hereafter
securing any of the Liabilities without demands, advertisement or notice of the
time or place of the sales or other dispositions; realizing on the collateral to
the extent you, in your sole discretion, deem proper; or purchases of all or any
part of the collateral for your own account.
This Guaranty and any and all obligations, liabilities, terms and
provisions herein shall survive any and all bankruptcy or insolvency
proceedings, actions and/or claims brought by or against Dealer, whether such
proceedings, actions and/or claims are federal and/or state.
This Guaranty is submitted by the undersigned to you (for your
acceptance or rejection thereof) at your above specified office; as an offer by
the undersigned to guaranty the credit and financial accommodations provided by
you to Dealer. If accepted, this Guaranty shall be deemed to have been made at
your above specified office. This Guaranty and all obligations pursuant thereto,
shall be governed and controlled as to interpretation, enforcement, validity,
construction, effect and in all other respects by the laws of the state of your
above specified office. The undersigned, to induce you to accept this Guaranty,
agrees that all actions or proceedings arising directly or indirectly in
connection with, out of, related to or from this Guaranty may be litigated, at
your sole discretion and election, in courts within the state of your above
specified office. The undersigned consents and submits to the jurisdiction of
any local, state or federal court located within that state. The undersigned
waives any right to transfer or change the venue of any litigation brought
against the undersigned by you in accordance with this paragraph.
Any delay by you, or your successors, affiliates or assigns in
exercising any or all rights granted you under this Guaranty shall not operate
as a waiver of those rights. Furthermore, any failure by you, your successors,
affiliates or assigns, to exercise any or all rights granted you under this
Guaranty shall not operate as a waiver of your right to exercise any or all of
them later.
This document contains the full agreement of the parties concerning the
guaranty of Dealer's Liabilities and can be varied only by a document signed by
all the parties hereto. The undersigned may terminate this Guaranty by notice to
you in writing, the termination to be effective sixty (60) days after receipt
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and acknowledgment thereof by you, but the termination shall in no manner
terminate the undersigned guaranty of Liabilities arising prior to the effective
date of termination.
WE AGREE THAT ANY ACTION, SUIT OR PROCEEDING RELATING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY OR THE RELATIONSHIP BETWEEN YOU AND US, WILL BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. THUS, WE
HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH ACTION, SUIT OR PROCEEDING.
WITNESS:
____________________________________ Datatec Systems, Inc.
(Name of Corporate Guarantor)
(Print Name_________________________) By: /s/ Xxxxx Xxxx
------------------------------
Address:____________________________ (Print Name Xxxxx X. Xxxx)
-------------
____________________________________ Title: Chairman & CEO
____________________________________ Guarantor's Address:
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(SEAL) ATTEST:
/s/ Xxxxxx Xxxxxxxx
--------------------------------
THERE IS NO CORPORATE SEAL (Secretary)
(Print Name Xxxxxx X. Xxxxxxxx)
------------------
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SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary of the following named
corporation and that execution of the above Guaranty was ratified, approved and
confirmed by the Shareholders at a meeting, if necessary, and pursuant to a
resolution of the Board of Directors of the corporation at a meeting of the
Board of Directors duly called, and which is currently in effect, which
resolution was duly presented, seconded and adopted and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby
authorized to execute a guaranty of the obligations of Datatec Industries, Inc.
("Dealer") to IBM Credit Corporation on behalf of the corporation, which
instrument may contain such terms as the above named persons may see fit
including, but not limited to a waiver of notice of acceptance of this guaranty;
presentment; demand; protest; notices of nonpayment, nonperformance, dishonor,
the amount of indebtedness of Dealer outstanding at any time, any legal
proceedings against Dealer, and any other demands and notices required by law;
any right of contribution from other guarantors; and all set-offs and
counterclaims."
IN WITNESS WHEREOF and as Secretary of the named corporation I have
hereunto set my hand and affixed the corporate seal on this 8th day of November,
2000.
(SEAL) /s/ Xxxxxx Xxxxxxxx
----------------------------------
(Secretary)
Datatec Systems, Inc.
(Corporate Guarantor)
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