EXHIBIT 10.30
IBM Credit Corporation
COLLATERALIZED GUARANTY
In consideration of credit and financing accommodations granted or
to be granted by IBM Credit Corporation with an office located at 0000 XxxxxXxxx
Xxxxxxx, Xxxxxxx, XX 00000, ("IBM Credit") to Datatec Industries, Inc.
("Customer"), which is in the best interest of Datatec Systems, Inc.
("Guarantor"), and for other good and valuable consideration received, Guarantor
jointly and severally guaranties to IBM Credit, from property held separately,
jointly or in community, the prompt and unconditional performance and payment by
Customer of any and all obligations, liabilities, contracts, mortgages, notes,
trust receipts, secured transactions, inventory financing and security
agreements, and commercial paper on which Customer is in any manner obligated,
heretofore, now, or hereafter owned, contracted or acquired by IBM Credit
("Liabilities"), whether the liabilities are individual, joint, several,
primary, secondary, direct, contingent or otherwise. Xxxxxxxxx also agrees to
indemnify IBM Credit and hold IBM Credit harmless against any losses it may
sustain and expenses it 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 Customer.
If Customer fails to pay or perform any Liabilities to IBM Credit when due, all
Liabilities to IBM Credit shall then be deemed to have become immediately due
and payable, and Guarantor shall then pay upon demand the full amount of all
sums owed to IBM Credit by Customer, together with all expenses, including
reasonable attorney's fees.
The liability of Guarantor 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 IBM Credit and Customer, 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 Customer's financial condition, or the interruption of
business relations between IBM Credit and Customer. This Guaranty is and shall
be deemed to be a continuing guaranty and shall remain in full force and effect
until the indefeasible payment in full of the Liabilities and any other amounts
payable under this Guaranty and the cessation of all obligations of IBM Credit
to extend credit to Customer. Guarantor acknowledges that its obligations
hereunder are in addition to and independent of any agreement or transaction
between IBM Credit and Customer or any other person creating or reserving any
lien, encumbrance or security interest in any property of Customer or any other
person as security for any obligation of Customer. IBM Credit need not exhaust
its rights or recourse against Customer or any other person or any security IBM
Credit may have at any time before being entitled to payment from Guarantor.
To secure payment of all of Guarantor's current and future debts and obligations
to IBM Credit, whether under this Guaranty or any other agreement between IBM
Credit and Guarantor, whether direct or contingent, Guarantor does assign,
pledge and give to IBM Credit a security interest in all of Guarantor's
inventory, raw materials, goods in process, finished goods, machines, machinery,
furniture, furnishings, fixtures, vehicles, equipment, accounts receivable, book
debts, notes, chattel paper, acceptances, rebates, incentive payments, drafts,
contracts, contract rights, choses in action, and general intangibles, whether
now owned or hereafter acquired, and all attachments, accessions and additions
thereto, substitutions, replacements, accessories, and equipment therefor, and
all proceeds therefrom (all of the above property is referred to as the
"Collateral"). This security interest is also granted to secure Guarantor's
debts to all of IBM Credit's affiliates.
IBM Credit shall have the right, but not the obligation, from time to time, as
IBM Credit in its sole discretion may determine, and all without any advance
notice to Guarantor, to: (a) examine the Collateral; (b) appraise it as
security; (c) verify its condition and nonuse; (d) verify that all Collateral
has been properly accounted for and this Agreement complied with, and (e)
assess, examine, check and make copies of any and all of Guarantor's books,
records and files.
If Guarantor does not comply with any of the terms of this Agreement, or
Guarantor fails to fulfill any obligation to IBM Credit or any of IBM Credit's
affiliates under any other agreement between IBM Credit and Guarantor or between
Guarantor and any of IBM Credit's affiliates, or Guarantor becomes insolvent or
ceases to do business as a going concern, or a bankruptcy, insolvency
proceeding, arrangement or reorganization is filed by or against Guarantor, or
any of Guarantor's property is attached or seized, or a receiver is appointed
for Guarantor, or Guarantor commits any act which impairs the prospect of full
performance or satisfaction of Guarantor's obligations to IBM Credit, or
Guarantor shall lose any franchise, permission, license or right to conduct its
business, or Guarantor misrepresents its financial condition or organizational
structure, or whenever IBM Credit deems the debt or Collateral to be insecure:
a) IBM Credit may call all or any part of the amount Guarantor or
Customer owes IBM Credit or IBM Credit's affiliates due and payable
immediately, if permitted by applicable law, together with court
costs and all costs and expenses of IBM Credit's repossession and
collection activity, including, but not limited to reasonable
attorney's fees.
b) Guarantor will hold and keep the Collateral in trust, in good
order and repair, for IBM Credit's benefit and shall not exhibit or
sell it.
c) Upon IBM Credit's demand, Guarantor will immediately deliver the
Collateral to IBM Credit, in good order and repair, at a place
reasonably convenient to IBM Credit, together with all related
documents; or IBM Credit may, in IBM Credit's sole discretion and
without demand, take immediate possession of the Collateral,
together with all related documents.
d) Guarantor waives and releases: (i) any and all claims and causes
of action which Guarantor may now or ever have against IBM Credit as
a result of any possession, repossession, collection or sale by IBM
Credit of any of the Collateral, notwithstanding the effect of such
possession, repossession, collection or sale upon Guarantor's
business; (ii) all rights of redemption from any such sale; and
(iii) the benefit of all valuation, appraisal and exemption laws. If
IBM Credit seeks to take possession of any of the Collateral by
replevin or other court process, Guarantor irrevocably waives any
notice, bonds, surety and security relating thereto required by any
statute, court rule or otherwise as an incident to such possession
and any demand for possession of the Collateral prior to the
commencement of any suit or action to recover possession thereof.
e) Guarantor appoints IBM Credit or any person IBM Credit may
delegate as its duly authorized Attorney-in-Fact (without notifying
Guarantor) to do, in IBM Credit's sole discretion, any of the
following: (i) sell, assign, transfer, negotiate or pledge any and
all accounts, chattel paper, or contract rights; (ii) endorse
Guarantor's name on any and all notes, checks, drafts, or other
forms of exchange received as payment on any accounts, chattel paper
and contract rights, for deposit in IBM Credit's account; (iii)
grant any extension, rebate or renewal on any and all accounts,
chattel paper or contract rights, or enter into any settlement
thereof; (iv) demand, collect and receive any and all amounts due on
accounts, chattel paper and contract rights; and (v) exercise any
and all rights Guarantor has in the Collateral.
f) In the event Guarantor brings any action or asserts any claim
against IBM Credit which arises out of this Agreement, any other
agreement or any of Guarantor's and IBM Credit's business dealings,
in which Guarantor does not prevail, Guarantor agrees to pay IBM
Credit all court costs and all costs and expenses of IBM Credit's
defense of such action of claim including, but not limited to,
reasonable attorney's fees.
IBM Credit may also declare a default under this Agreement and exercise any and
all rights and remedies available herein, if, in IBM Credit's sole discretion,
IBM Credit determines that the Collateral has decreased in value, and Guarantor
has been unable to either: (a) provide IBM Credit with additional Collateral in
a form and substance satisfactory to IBM Credit; or (b) reduce the total
indebtedness of Customer by an amount sufficient to IBM Credit.
IBM Credit has and will always possess all the rights and remedies of a secured
party under law, and IBM Credit's rights and remedies are and will always be
cumulative. Guarantor acknowledges and agrees that the Collateral is the subject
of widely distributed standard price quotations and is customarily sold in a
recognized market. Guarantor agrees that a private sale by IBM Credit of any of
the Collateral to a dealer in those types of Collateral is a commercially
reasonable sale. Further, Xxxxxxxxx agrees that IBM Credit's delivery of any of
the Collateral to a distributor or manufacturer, with a request that it
repurchase Collateral, as provided in any repurchase agreement with IBM Credit,
is a commercially reasonable disposition or sale.
Guarantor promises that (a) the Collateral is and shall remain free from all
claims and liens except IBM Credit's; (b) Guarantor shall defend the Collateral
against all other claims and demands; and (c) Guarantor will notify IBM Credit
before it signs, or authorizes the signing of any financing statement regardless
of its coverage. Where permitted by law, IBM Credit may perfect IBM Credit's
security interest in the Collateral by filing a financing statement signed only
by IBM Credit. Guarantor will execute any and all documents IBM Credit may
request to confirm or perfect IBM Credit's title or security interest in the
Collateral.
Guarantor represents that it is duly organized under the laws of the State of
______________ and that its principal place of business is located at:
_____________________________________________________________________________.
(Number and Street) (City, County, State, Zip Code)
Guarantor represents that its business is conducted as a ___________
CORPORATION, ________ SOLE PROPRIETORSHIP, ___________ LIMITED LIABILITY
COMPANY, ___________ PARTNERSHIP, _________ JOINT VENTURE (check applicable
term). Guarantor agrees to notify IBM Credit immediately of any change in its
state of organization, identity, name, form of ownership or management, and of
any change in its principal place of business, or any additions or
discontinuances of other business locations.
The Collateral shall be kept at Guarantor's principal place of business and at
the following addresses:
________________________________________________________________________________
________________________________________________________________________________
until all sums owed IBM Credit are paid in full. Guarantor will immediately
notify IBM Credit if the Collateral is kept at any other address. This
paragraph is for IBM Credit's informational purposes only; and is not in any way
or manner intended to limit the extent of IBM Credit's security interest in the
Collateral. Guarantor and its predecessors have done and do business only under
the following names:
________________________________________________________________________________
Guarantor will pay all taxes, license fees, assessments and charges on the
Collateral when due. Guarantor will be responsible for any loss of Collateral
for any reason whatsoever. Guarantor will keep the Collateral insured for its
full insurable value against loss or damage by fire, wind, theft and for
combined additional coverage, including vandalism and malicious mischief, and
for other risks as IBM Credit may require. Guarantor will obtain insurance under
such terms and in amounts as IBM Credit may specify, from time to time, in
companies acceptable to IBM Credit, with a loss-payee or mortgagee clause
payable to IBM Credit to the extent of any loss to the Collateral and containing
a waiver of all defenses against Guarantor that is acceptable to IBM Credit.
Guarantor further agrees to provide IBM Credit with written evidence of the
required insurance coverage and loss-payee or mortgagee clause. Guarantor
assigns to IBM Credit all sums not in excess of the unpaid debt owed IBM Credit,
and directs any insurance company to make payment directly to IBM Credit to be
applied to the unpaid debt owed IBM Credit. Guarantor further grants IBM Credit
an irrevocable power of attorney to endorse any draft and sign and file all of
the necessary papers, forms and documents to initiate and settle any and all
claims with respect to the Collateral. If Guarantor fails to pay any of the
above-referenced costs, charges or any insurance premiums, or if it fails to
insure the Collateral, IBM Credit may pay such costs, charges or any insurance
premiums, and the amounts paid shall be considered an additional debt owed by
Guarantor to IBM Credit. Guarantor will promptly notify IBM Credit of any loss,
theft or destruction of or damage to any of the Collateral.
Guarantor will not rent, lease, lend, demonstrate, pledge, create a security
interest in, transfer or secrete any of the Collateral, or use the Collateral
for any purpose other than exhibition, without IBM Credit's prior written
consent.
This Guaranty is assignable, shall be construed liberally in IBM Credit's favor,
and shall inure to the benefit of and bind IBM Credit's and Guarantor's
respective successors, personal representatives and assigns, and also benefit
any of IBM Credit's existing or future affiliates that may extend credit to
Customer.
If Customer 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 Customer or such resulting corporation, dissolved
corporation, or new or changed legal entity, or identity to IBM Credit.
Guarantor 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 Customer outstanding at any time; notices of the number and
amount of advances made by IBM Credit to Customer in reliance on this Guaranty;
notices of any legal proceedings against Customer; notice and hearing as to any
prejudgment remedies; and any other demands and notices required by law.
Guarantor further waives all rights of setoff and all counterclaims against IBM
Credit or Customer. Guarantor 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 Guarantor herein shall survive any termination or revocation of
this Guaranty.
Guarantor authorizes IBM Credit 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 IBM Credit deems best, all
without advertisement or notice to Customer, Guarantor, or any third parties.
Guarantor further authorizes IBM Credit to deal with the proceeds of such
Collateral as provided in IBM Credit's agreement with Customer, without
prejudice to IBM Credit's claim for any deficiency and free from any right or
redemption on the part of Customer, Guarantor 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.
Guarantor 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 Customer to Guarantor, 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. Guarantor
will not ask, demand or sue 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.
Guarantor has made an independent investigation of the financial condition of
Customer and gives this Guaranty based on that investigation and not upon any
representations made by IBM Credit. Guarantor acknowledges that it has access to
current and future Customer financial information which will enable Guarantor to
continuously remain informed of Customer's financial condition. Guarantor also
consents to and agrees that the obligations under this Guaranty shall not be
affected by IBM Credit's subsequent increases or decreases in the credit line
that IBM Credit may grant to Customer; 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 IBM Credit, in IBM Credit's sole discretion, deems
proper; or purchases of all or any part of the Collateral for IBM Credit's 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 Customer, whether such proceedings, actions
and/or claims are federal and/or state.
This Guaranty is submitted by Guarantor to IBM Credit (for IBM Credit's
acceptance or rejection thereof) at IBM Credit's above specified office; as an
offer by Guarantor to guaranty the credit and financial accommodations provided
by IBM Credit to Customer. If accepted, this Guaranty shall be deemed to have
been made at IBM Credit's 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 New York without giving effect to the
principles of conflicts of laws. Guarantor, to induce IBM Credit 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 IBM Credit's sole discretion and election, in courts within the State of New
York. Guarantor consents and submits to the jurisdiction of any local, state or
federal court located within that state. Guarantor waives any right to transfer
or change the venue of any litigation brought against Guarantor by IBM Credit in
accordance with this paragraph.
Any delay by IBM Credit, or IBM Credit's successors, affiliates or assigns in
exercising any or all rights granted IBM Credit under this Guaranty shall not
operate as a waiver of those rights. Furthermore, any failure by IBM Credit, IBM
Credit's successors, affiliates or assigns, to exercise any or all rights
granted IBM Credit under this Guaranty shall not operate as a waiver of IBM
Credit's right to exercise any or all of them later.
This document contains the full agreement of the parties concerning the guaranty
of Customer's Liabilities and can be varied only by a document signed by all of
the parties hereto.
THE PARTIES AGREE THAT ANY ACTION, SUIT OR PROCEEDING, RELATING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY, OR THE RELATIONSHIP BETWEEN IBM CREDIT AND
GUARANTOR, WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT
A JURY. THUS, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH
ACTION, SUIT OR PROCEEDING.
WITNESS DATATEC SYSTEMS, INC.
Name of Corporate Guarantor
/s/ Xxxxxxx Xxxxx By: /s/ Xxx X. Xxxxxx
----------------------------------- --------------------------------
Print Name: Xxxxxxx Xxxxx Print Name: Xxx X. Xxxxxx
------------------------ ------------------------
Title: CFO
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Xxxxxxx Xxxxx Date: 5/2/01
NOTARY PUBLIC, STATE OF NEW JERSEY -------------------------
NO 2162129 Guarantor's Address:
QUALIFIED BERGEN COUNTY ---------------
COMMISSION EXPIRES FEBRUARY 3, 2004 00 Xxxxxxx Xx.
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ATTEST: Fairfield, NJ 07004
/s/ Xxx X. Xxxxxx -----------------------------------
------------------------------------
Secretary
Print Name: Xxx X. Xxxxxx
------------------------------------
IBM Credit Corporation
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
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. ("Customer")
to IBM Credit Corporation on behalf of the corporation, which instrument may
contain such terms as any officer may see fit including, but not limited to a
grant of a security interest in all assets of this corporation to secure this
corporation's liabilities and obligations to IBM Credit Corporation; a waiver of
notice of the acceptance of this guaranty; presentment; demand; protest; notices
of nonpayment, nonperformance, dishonor, the amount of indebtedness of Customer
outstanding at any time, any legal proceedings against Xxxxxxxx, and any other
demands and notices required by law; any right of contribution from other
guarantors; and all setoffs 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 2nd day of May, 2001.
/s/ Xxx X. Xxxxxx
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(Corporate Guarantor)
CORPORATE SEAL
