BB&T
GUARANTY AGREEMENT
BRANCH BANKING AND TRUST COMPANY _____________________________
Dear Sirs:
As an inducement to Branch Banking and Trust Company ("Bank') to extend
credit to and to otherwise deal with Datametrics Corporation, a Delaware
corporation. ("Borrower"), and in consideration thereof, the undersigned (and
each of the undersigned jointly and severally if more than one) hereby
absolutely and unconditionally guarantees to Bank and its successors and assigns
the due and punctual payment of any and all notes, drafts, debts, obligations
and liabilities, primary or secondary (whether by way of endorsement or
otherwise), of Borrower, at any time, now or hereafter, incurred with or held by
Bank, together with interest, as and when the same become due and payable,
whether by acceleration or otherwise, in accordance with the terms of any such
notes, drafts, debts, obligations or liabilities or agreements evidencing any
such indebtedness, obligation or liability including all renewals, extensions
and modifications thereof. The obligation of the undersigned is a guarantee of
payment and not of collection.
The undersigned is Bank's debtor for all indebtedness, obligations and
liabilities for which this Guaranty is made, and Bank shall also at all times
have a lien on and security interest in all stocks, bonds and other securities
of the undersigned at any time in Bank's possession and the same shall at Bank's
option be held, administered and disposed of as collateral to any such
indebtedness, obligation or liability of the Borrower, and Bank shall also at
all times have the right of set-off against any deposit account of the
undersigned with Bank in the same manner and to the same extent that the right
of set-off may exist against the Borrower.
It is understood that any such notes, drafts, debts, obligations and
liabilities may be accepted or created by or with Bank at any time and from time
to time without notice to the undersigned, and the undersigned hereby expressly
waives presentment, demand, protest, and notice of dishonor of any such notes,
drafts, debts, obligations and liabilities or other evidences of any such
indebtedness, obligation or liability.
Bank may receive and accept from time to time any securities or other
property as a collateral to any such notes, drafts, debts, obligations and
liabilities, and may surrender, compromise, exchange and release absolutely the
same or any part thereof at any time without notice to the undersigned and
without in any manner affecting the obligation and liability of the undersigned
hereby created. The undersigned agrees that Bank shall have no obligation to
protect, perfect, secure or insure any security interests, liens or encumbrances
now or hereafter held for the indebtedness, obligations and liabilities for
which this Guaranty is made.
This obligation and liability on the part of the undersigned shall be a
primary, and not a secondary, obligation and liability, payable immediately upon
demand without recourse first having been had by Bank against the Borrower or
any other guarantor, person, firm or corporation, and without first resorting to
any property held by Bank as collateral security; and the undersigned hereby
waives the benefits of all provisions of law for stay or delay of execution or
sale of property or other satisfaction of judgment against the undersigned on
account of obligation and liability hereunder until judgment be obtained
therefor against the Borrower and execution thereon returned unsatisfied, or
until it is shown that the Borrower has no property available for the
satisfaction of the indebtedness, obligation or liability guaranteed hereby, or
until any other proceedings can be had; and the undersigned hereby agrees to
indemnify the Bank for all costs of collection, including but not limited to the
costs of repossession, foreclosure, reasonable attorneys' fees, and court costs
incurred by the Bank in the event that the Bank should first be required by the
undersigned to resort to any property held by the Bank or in which the Bank has
a security interest or to obtain execution or other satisfaction of a judgment
against the Borrower on account of Borrower's obligation and liability for its
indebtedness guaranteed hereby; and the
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undersigned further agrees that the undersigned is responsible for any
obligation or debt, or portion thereof, of the Borrower to the Bank which has
been paid by the Borrower to the Bank and which the Bank is subsequently
required to return to the Borrower or a trustee for the Borrower in any
bankruptcy or insolvency proceeding; and the undersigned further agrees that
none of the undersigned shall have any right of subrogation, reimbursement or
indemnity whatsoever, nor any right of recourse to security for the debts and
obligations of the Borrower to Bank unless and until all of the debts and
obligations of the Borrower to Bank have been paid in full. The undersigned
hereby waives, to the extent avoidable under any provision of the Bankruptcy
Code, any right arising upon payment by the undersigned of any obligation under
this Guaranty to assert a claim against the bankruptcy estate of the Borrower.
Check applicable box:
|_| This Guaranty is unlimited and applies to all indebtedness of Borrower,
whether now existing or hereafter arising.
|_| This Guaranty applies to all indebtedness of Borrower evidenced by
its promissory note numbers ____ ated _______(including all extensions,
renewals,and modifications thereof) in the aggregate principal amount
of $ ___________.
|X| This Guaranty is limited to an amount of $_____________ plus accrued
interest, late fees, costs of collection (including attorneys' fees)
and all other obligations and indebtedness which may accrue or be
incurred with respect to the Borrower's indebtedness and obligations to
Bank.
To secure the payment of all obligations of the undersigned hereunder,
the undersigned hereby grants a security interest and lien in the following
goods and property owned by the undersigned:____________________________________
________________________________________________________________________________
**SEE ADDENDUM TO GUARANTY (INCORPORATED HEREIN BY
REFERENCE) FOR GUARANTY SECURITY TERMS** ("Collateral").
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________("Collateral").
The undersigned hereby agrees to execute and deliver to Bank any security
agreement, deed of trust, mortgage, UCC financing statement, or other document
required by the Bank in order to protect its security interest or lien in the
Collateral. This document shall constitute a security agreement under the
Uniform Commercial Code of Maryland ("Code"), and in addition to having all
other legal rights and remedies, the Bank shall have all rights and remedies of
a secured party under the Code.
This agreement shall inure to the benefit of Bank, its successors and
assigns, and the owners and holders of any of the indebtedness, obligations and
liabilities hereby guaranteed, and shall remain in force until a written notice
revoking it has been received by Bank; but such revocation shall not release the
undersigned from liability to Bank, its successors and assigns, or the owners
and holders of any of the indebtedness, obligations and liabilities hereby
guaranteed, for any indebtedness, obligation or liability of the Borrower which
is hereby guaranteed and then in existence or from any renewals, extensions or
modifications thereof in whole or in part, whether such renewals, extensions or
modifications are made before or after such revocation, with or without notice
to the undersigned. The undersigned waives presentment, demand, protest and
notices of every kind and assents to any one or more extensions, modifications,
renewals or postponements of the time or amount of payment or any other
indulgences given to Borrower. The undersigned shall be responsible for and
shall reimburse the Bank for all costs and expenses (including reasonable
attorneys' fees) incurred by the Bank in connection with the enforcement of this
Guaranty or the protection or preservation of any right or claim of
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the Bank in connection herewith, including without limitation costs and expenses
incurred by the Bank in connection with its attempts to collect the
indebtedness, obligations, and liabilities guaranteed hereby.
If the Borrower is a corporation, this instrument covers all
indebtedness, obligations and liabilities to Bank purporting to be made or
undertaken on behalf of such corporation by any such officer or agent of said
corporation without regard to the actual authority of such officer or agent. The
term 'corporation" shall include associations of all kinds and all purported
corporations, whether correctly and legally chartered and organized.
The undersigned covenants, warrants, and represents to the Bank that:
(i) this guaranty is enforceable against the undersigned in accordance with its
terms; (ii) the execution and delivery of this Guaranty does not violate or
constitute a breach of any agreement to which the undersigned is a party; (iii)
that there is no litigation, claim, action or proceeding pending or, to the best
knowledge of the undersigned, threatened against the undersigned which would
materially adversely affect the financial condition of the undersigned or his
ability to fulfill his obligations hereunder; and (iv) that the undersigned has
knowledge of the Borrower's financial condition and affairs.
This Guaranty is made in and shall be construed in accordance with the
laws and judicial decisions of the State of Maryland. The undersigned agrees
that any dispute arising out of this Guaranty shall be adjudicated in either the
state or federal courts of Maryland and in no other forum, For that purpose, the
undersigned hereby submits to the jurisdiction of the state and/or federal
courts of Maryland. The undersigned waives any defense that venue is not proper
for any action brought in any federal or state court in the State of Maryland.
Witness the signature and seal of each of the undersigned.
WITNESS
_________________________ __________________________(SEAL)
_________________________ __________________________(SEAL)
Address of Guarantor(s): ________________________
________________________
California, Los Angeles County
I, ____________, Notary Public of Los Angeles County, do hereby certify
that__________ personally appeared before me this day and acknowledged the due
execution of the foregoing instrument in writing.
Witness my hand and seal, this____ day of__________, 1999.
My Commission Expires: ---------------------------
Notary Public
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ADDENDUM TO GUARANTY AGREEMENT
WITNESSETH:
The following additional terms are incorporated into the Guaranty
Agreement dated August ___, 1999, by and between Branch Banking and Trust
Company (the "Bank"), and Xxx Xxxxxxx (the "Guarantor"):
1. Notices. Pursuant to the terms set forth in that certain Promissory
Note from Datametrics Corporation, a Delaware corporation ("Borrower") to Branch
Banking and Trust Company (the "Bank"), the Borrower is entitled to written
notice of any default from Bank with a cure period of ten (10) business days to
cure said default. Prior to exercising its rights in the collateral as described
more fully hereinbelow, the Bank shall give the undersigned Guarantor written
notice of any default which has not been cured by Borrower, and the undersigned
Guarantor shall have an additional ten (10) business days to cure said default
of Borrower.
Notices shall be given to Guarantor by hand-delivery to the Guarantor
at the following address: _______________________, or sent via facsimile
transmission to __________, or sent by overnight mail via a nationally
recognized overnight delivery service to Guarantor's address listed above, or by
United States mail, first-class and postage prepaid to Guarantor's address
listed above. All notices required or permitted to be given hereunder to the
Bank shall be hand-delivered to the Lender at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000, Attn: Commercial Lending, or sent by United States Mail, postage
prepaid, registered or certified with return receipt requested to the aforesaid
address.
If any written notice is mailed via first-class mail, it shall be
deemed effective on the earlier of actual receipt or on the third (3rd) calendar
day following date of mailing; notices sent by overnight delivery shall be
effective twenty-four (24) hours after being deposited with the overnight
delivery company; and notice delivered in person, by registered or certified
mail, or by facsimile transmission shall be effective upon actual delivery or
transmission. Any party may change its address or facsimile number for notice
hereunder to another location within the continental United States by giving
thirty (30) days written notice to the other party in the manner set forth
above.
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2. COLLATERAL/RECOURSE. To induce the Bank to extend credit to and to
otherwise deal with Borrower, Guarantor caused the issuance of an irrevocable
Standby Letter of Credit [Credit Number ______] from US Trust in favor of the
Bank in the sum of __________Dollars ($_________.00) as collateral for this
Guaranty. Notwithstanding anything to the contrary contained in the Guaranty, in
the event of default without cure thereof within any applicable cure periods by
Borrower and/or Guarantor, the Bank's recourse against Guarantor shall limited
to the presentation of a sight draft to US Trust against said Letter of Credit.
IN THE EVENT OF A CONFLICT BETWEEN THE GUARANTY AGREEMENT AND
THIS ADDENDUM TO GUARANTY AGREEMENT, THIS ADDENDUM TO GUARANTY
AGREEMENT SHALL CONTROL.
GUARANTOR:
Witness:
__________________________ _______________________________ (Seal)
