EXHIBIT 10.7
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BANK OF AMERICA
NOTE AND AGREEMENT
Date of Agreement: August 1, 2005
BANK OF AMERICA, N.A.
Business Credit Services - Documentation & Servicing
Premier Banking/Small Business Banking
West Seneca - Credit Services
Attn: Notice Desk
NY7-505-01-24
0000 Xxxxxxx Xx
Xxxx Xxxxxx, XX 00000
PRIMARY BORROWER NAME(S) AND ADDRESS
SWK TECHNOLOGIES
0 XXXXXX XXXXXX
XXXXXXXXXX, XX 00000
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PRINCIPAL AMOUNT: $250,000.00 ACCOUNT NUMBER: 0000000
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INTRODUCTION. This Note and Agreement ("Agreement"), dated and effective as of
August 1, 2005, is entered into between SWK Technologies (the "Borrower') and
Bank of America, N.A. (the "Bank"). The Borrower agrees to the following terms
and conditions:
1. LINE OF CREDIT
1.1 LINE OF CREDIT AMOUNT.
(a) During the availability period described below, the Bank will provide a
line of credit to the Borrower. The amount of the line of credit (the
"Commitment") is Two Hundred Fifty Thousand and 001100 Dollars
($250,000.00). The Bank may increase or decrease the Commitment at any time
and for any reason. The Bank will give the Borrower notice of any change in
the Commitment.
(b) This is a revolving line of credit. During the availability period, the
Borrower may repay principal amounts and reborrow them. (c) The Borrower
agrees not to permit the principal balance outstanding to exceed the
Commitment. If the Borrower exceeds this limit, the Borrower will
immediately pay the excess to the Bank upon the Bank's demand.
1.2 AVAILABILITY PERIOD. The line of credit is available between the date of
this Agreement and August 1, 2006, or such earlier date as the availability may
terminate as provided in this Agreement (the "Expiration Date").
The availability period for this line of credit will be considered renewed if
and only if the Bank has sent to the Borrower a written notice of renewal
effective as of the Expiration Date for the line of credit (the "Renewal
Notice"). If this line of credit is renewed, it will continue to be subject to
all the terms and conditions set forth in this Agreement except as modified by
the Renewal Notice. If this line of credit is renewed, the term "Expiration
Date" shall mean the date set forth in the Renewal Notice as the Expiration
Date, and all outstanding principal plus all accrued interest shall be paid on
the Expiration Date. The same process for renewal will apply to any subsequent
renewal of this line of credit. A renewal fee may be charged at the Bank's
option. The amount of the renewal fee will be specified in the Renewal Notice.
If this line of credit is not renewed, the Bank in its sole discretion may allow
the outstanding balance to be repaid in installments over a term specified by
the Bank at the time. The Borrower specifically understands that the interest
rate applicable to the line
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of credit may be increased upon term-out and that the new interest rate will
apply to the entire outstanding principal balance due hereunder. A transaction
fee may be charged at the Bank's option. If so, the amount will be specified in
the term-out notice.
1.3 Repayment Terms.
(a) The Borrower will pay interest on September 1, 2005, and then on the same
day of each month thereafter until payment in full of any principal
outstanding under this Agreement.
(b) The Borrower will repay in full any principal, interest or other charges
outstanding under this Agreement no later than the Expiration Date.
1.4 INTEREST RATE.
(a) The interest rate is a rate per year equal to the Bank's Prime Rate plus 1
percentage point(s).
(b) The Prime Rate is the rate of interest publicly announced from time to time
by the Bank as its Prime Rate. The Prime Rate is set by the Bank based on
various factors, including the Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans. The Bank may price loans to its customers at, above, or
below the Prime Rate. Any change in the Prime Rate shall take effect at the
opening of business on the day specified in the public announcement of a
change in the Bank's Prime Rate.
2. FEES AND EXPENSES
2.1 FEES.
(a) Waiver Fee. If the Bank, at its discretion, agrees to waive or amend any
terms of this Agreement, the Borrower will, at the Bank's option, pay the
Bank a fee for each waiver or amendment in an amount advised by the Bank at
the time the Borrower requests the waiver or amendment. Nothing in this
paragraph shall imply that the Bank is obligated to agree to any waiver or
amendment requested by the Borrower. The Bank may impose additional
requirements'as a condition to any waiver or amendment.
(b) Late Fee. To the extent permitted by law, the Borrower agrees to pay a late
fee in an amount not to exceed four percent (4%) of any payment that is
more than fifteen (15) days late. The imposition and payment of a late fee
shall not constitute a waiver of the Bank's rights with respect to the
default.
2.2 EXPENSES. The Borrower agrees to immediately repay the Bank for expenses
that include, but are not limited to, filing, recording and search fees,
appraisal fees, title report fees, documentation fees, and all fees and taxes
required by law in connection with providing the credit.
2.3 REIMBURSEMENT COSTS. The Borrower agrees to reimburse the Bank for the cost
of periodic field examinations of Borrower's books, records and collateral, and
appraisals of the collateral, at such intervals as the Bank may reasonably
require. The actions described in this paragraph may be performed by employees
of the Bank or by independent appraisers.
3. COLLATERAL
3.1 PERSONAL PROPERTY. The personal property listed below now owned or owned in
the future by the parties listed below will secure Borrower's obligations to the
Bank under this Agreement. The collateral is further defined in security
agreement(s) executed by the owners of the collateral. In addition, all personal
property collateral owned by the Borrower securing this Agreement shall also
secure all other present and future obligations of the Borrower to the Bank
(excluding any consumer credit covered by the federal Truth in Lending law,
unless the Borrower has otherwise agreed in writing or received written notice
thereof). All personal property collateral securing any other present or future
obligations of the Borrower to the Bank shall also secure this Agreement.
(a) Equipment owned by the Borrower.
(b) Inventory owned by the Borrower.
(c) Receivables owned by the Borrower.
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4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 BANKING DAYS. Unless otherwise provided in this Agreement, a banking day is
a day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close, or are in fact closed, in the state where the Bank's
lending office is located, and, if such day relates to amounts bearing interest
at an offshore rate (if any), means any such day on which dealings in dollar
deposits are conducted among banks in the offshore dollar interbank market. All
payments and disbursements which would be due on a day which is not a banking
day will be due on the next banking day. All payments received on a day which is
not a banking day will be applied to the credit on the next banking day.
4.2 INTEREST CALCULATION. Except as otherwise stated in this Agreement, all
interest and fees, if any, will be computed on the basis of a 360-day year and
the actual number of days elapsed. This results in more interest or a higher fee
than if a 365-day year is used. Installments of principal which are not paid
when due under this Agreement shall continue to bear interest until paid.
4.3 DEFAULT RATE. Upon the occurrence of any default or after maturity or after
judgment has been rendered on any obligation under this Agreement, all amounts
outstanding under this Agreement, including any interest, fees, or costs which
are not paid when due, will at the option of the Bank bear interest at a rate
which is 6.0 percentage point(s) higher than the rate of interest otherwise
provided under this Agreement. This may result in compounding of interest. This
will not constitute a waiver of any default.
5. CONDITIONS
Before the Bank is required to extend any credit to the Borrower under this
Agreement, it must receive any documents and other items it may reasonably
require, in form and content acceptable to the Bank, including any items
specifically listed below.
5.1 AUTHORIZATIONS. If the Borrower or any guarantor is anything other than a
natural person, evidence that the execution, delivery and performance by the
Borrower and/or such guarantor of this Agreement and any instrument or agreement
required under this Agreement have been duly authorized.
5.2 GOVERNING DOCUMENTS. If required by the Bank, a copy of the Borrower's
organizational documents.
5.3 GUARANTIES. Guaranties signed by Trey Resource Inc ("Trey "), Xxxx Xxxxxx
("Xxxx'), Xxxx Xxxxxx ("Xxxx") and Xxxxxxx Xxxx ("Xxxxxxx').
5.4 SECURITY AGREEMENTS. Signed original security agreements covering the
personal property collateral which the Bank requires.
5.5 PERFECTION AND EVIDENCE OF PRIORITY. Evidence that the security interests
and liens in favor of the Bank are valid, enforceable, properly perfected in a
manner acceptable to the Bank and prior to all others' rights and interests,
except those the Bank consents to in writing. All title documents for motor
vehicles which are part of the collateral must show the Bank's interest.
5.6 PAYMENT OF FEES. Payment of all fees, expenses and other amounts due and
owing to the Bank. If any fee is not paid in cash, the Bank may, in its
discretion, treat the fee as a principal advance under this Agreement or deduct
the fee from the loan proceeds.
6. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is repaid in full,
the Borrower makes the following representations and warranties. Each request
for an extension of credit constitutes a renewal of these representations and
warranties as of the date of the request:
6.1 FORMATION. If the Borrower is anything other than a natural person, it is
duly formed and existing under the laws of the state or other jurisdiction where
organized.
6.2 AUTHORIZATION. This Agreement, and any instrument or agreement required
hereunder, are within the Borrower's powers, have been duly authorized, and do
not conflict with any of its organizational papers.
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6.3 GOOD Standing. In each state in which the Borrower does business, it is
properly licensed, in good standing, and, where required, in compliance with
fictitious name statutes.
6.4 FINANCIAL INFORMATION. All financial and other information that has been or
will be supplied to the Bank is sufficiently complete to give the Bank accurate
knowledge of the Borrower's (and any guarantor's) financial condition, including
all material contingent liabilities. SINCE the date of the most recent financial
statement provided to the Bank, there has been no material adverse change in the
business condition (financial or otherwise), operations, properties or prospects
of the Borrower (or any guarantor). If the Borrower is comprised of the trustees
of a trust, the foregoing representations shall also pertain to the trustor(s)
of the trust.
6.5 LAWSUITS. There is no lawsuit, tax claim or other dispute pending or
threatened against the Borrower which, if lost, would impair the Borrower's
financial condition or ability to repay the loan, except as have been disclosed
in writing to the Bank.
6.6 OTHER OBLIGATIONS. The Borrower is not in default ON any obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation, except as have been disclosed in
writing to the Bank.
6.7 TAX MATTERS. The Borrower has no knowledge of any pending assessments or
adjustments of its income tax for any year and all taxes due have been paid,
except as have been disclosed in writing to the Bank.
6.8 NO EVENT OF Default. There is no event which is, or with notice or lapse of
time or both would be, a default under this Agreement.
6.9 COLLATERAL. All collateral required in this Agreement is owned by the
grantor of the security interest free of any title defects or any liens or
interests of others, except those which have been approved by the Bank in
writing.
7. COVENANTS
The Borrower agrees, so long as credit is available under this Agreement and
until the Bank is repaid in full:
7.1 USE OF PROCEEDS. To use the proceeds of the credit only for business
purposes.
7.2 FINANCIAL INFORMATION. To provide financial statements and other information
in form and content acceptable to the Bank relating to the affairs of the
Borrower and any guarantor as requested by the Bank from time to time.
7.3 OTHER DEBTS. Not to have outstanding or incur any direct or contingent
liabilities or lease obligations (other than those to the Bank), or become
liable for the liabilities of others, without the Bank's written consent. This
does not prohibit:
(a) Acquiring goods, SUPPLIES, or merchandise on normal trade credit.
(b) Liabilities, lines of credit and leases in existence on the date of this
Agreement disclosed in writing to the Bank.
(c) If the Borrower is a natural person, additional debts of the Borrower as an
individual for consumer purposes.
7.4 OTHER LIENS. Not to create, assume, or allow any security interest or lien
(including judicial liens) on property the Borrower now or later owns, except:
(a) Liens and security interests in favor of the Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement disclosed in writing to the
Bank.
7.5 MAINTENANCE OF ASSETS.
(a) Not to sell, assign, lease, transfer or otherwise dispose of any part of
the Borrower's business or the Borrower's assets except in the ordinary
course of the Borrower's business.
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(b) Not to sell, assign, lease, transfer or otherwise dispose of any assets for
less than fair market value, or enter into any agreement to do so.
(c) Not to enter into any sale and leaseback agreement covering any of its
fixed assets.
(d) To maintain and preserve all rights, privileges, and franchises the
Borrower now has.
(e) To make any repairs, renewals, or replacements to keep the Borrower's
properties in good working condition.
7.6 LOANS. Not to make any loans, advances or other extensions of credit to any
individual or entity except for extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business to non-affiliated entities.
7.7 Change of Management. Not to make any substantial change in the present
executive or management personnel of the Borrower.
7.8 Change of Ownership. If the Borrower is anything other than a natural
person, not to cause, permit, or suffer any change in capital ownership such
that there is a material change, as determined by the Bank in its sole
discretion, in the direct or indirect capital ownership of the Borrower.
7.9 ADDITIONAL NEGATIVE COVENANTS. Not to, without the Bank's written consent:
(a) Enter into any consolidation, merger, or other combination, or become a
partner in a partnership, a member of a joint venture, or a member of a
limited liability company.
(b) Acquire or purchase a business or its assets.
(c) Engage in any business activities substantially different from the
Borrower's present business.
(d) Liquidate or dissolve the Borrower's business.
7.10 Notices to Bank. To promptly notify the Bank in writing of:
(a) Any event of default under this Agreement, or any event which, with notice
or lapse of time or both, would constitute an event of default.
(b) Any change in the Borrower's name, legal structure, place of business, or
chief executive office if the Borrower has more than one place of business.
7.11 INSURANCE. To maintain insurance as is usual for the business it is in.
7.12 COMPLIANCE WITH LAWS. To comply with the laws (including any fictitious or
trade name statute), regulations, and orders of any government body with
authority over the Borrower's business.
7.13 BOOKS AND RECORDS. To maintain adequate books and records.
7.14 Audits. To allow the Bank and its agents to inspect the Borrower's
properties and examine, audit, and make copies of books and records at any
reasonable time. If any of the Borrower's properties, books or records are in
the possession of a third party, the Borrower authorizes that third party to
permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests for information concerning such
properties, books and RECORDS.
7.15 PERFECTION OF LIENS. To help the Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to protect its
security interests and liens.
7.16 COOPERATION. To take any action reasonably requested by the Bank to carry
out the intent of this Agreement.
7.17 BANK AS PRINCIPAL DEPOSITORY. To maintain, and to cause each guarantor to
maintain, the Bank as its principal depository bank, including for the
maintenance of business, cash management, operating and administrative deposit
accounts.
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DEFAULT AND REMEDIES
If any of the following events of default occurs, the Bank may do one or more of
the following without prior notice: declare the Borrower in default, stop making
any additional credit available to the Borrower, and require the Borrower to
repay its entire debt immediately. If an event which, with notice or the passage
of time, will constitute an event of default has occurred and is continuing, the
Bank has no obligation to make advances or extend additional credit under this
Agreement. In addition, if any event of default occurs, the Bank shall have all
rights, powers and remedies available under any instruments and agreements
required by or executed in connection with this Agreement, as well as all rights
and remedies available at law or in equity. If an event of default occurs under
the paragraph entitled "Bankruptcy," below, with respect to the Borrower, then
the entire debt outstanding under this Agreement will automatically be due
immediately.
8.1 FAILURE TO PAY. The Borrower fails to make a payment under this Agreement
when due.
8.2 OTHER BANK AGREEMENTS. Any default occurs under any other agreement the
Borrower (or any Obligor) has with the Bank or any affiliate of the Bank. For
purposes of this Agreement, "Obligor" shall mean any guarantor, any party
pledging collateral to the Bank, or, if the Borrower is comprised of the
trustees of a trust, any trustor.
8.3 CROSS-DEFAULT. Any default occurs under any agreement in connection with any
credit the Borrower (or any Obligor) has obtained from anyone else or which the
Borrower (or any Obligor) or any of the Borrower's related entities or
affiliates has guaranteed.
8.4 FALSE INFORMATION. The Borrower or any Obligor has given the Bank false or
misleading information or representations.
8.5 BANKRUPTCY. The Borrower, any Obligor, or any general partner of the
Borrower or of any Obligor files a bankruptcy petition, a bankruptcy petition is
filed against any of the foregoing parties, or the Borrower, any Obligor, or any
general partner of the Borrower or of any Obligor makes a general assignment for
the benefit of creditors.
8.6 RECEIVERS. A receiver or similar official is appointed for any portion of
the Borrower's or any Obligor's business, or the business is terminated, or, if
any Obligor is anything other than a natural person, such Obligor is liquidated
or dissolved.
8.7 REVOCATION OR TERMINATION. If the Borrower is comprised of the trustee(s) of
a trust, the trust is revoked or otherwise terminated or all or a substantial
part of the Borrower's assets are distributed or otherwise disposed of.
8.8 Lien Priority. The Bank fails to have an enforceable first lien (except for
any prior liens to which the Bank has consented in writing) on or security
interest in any property given as security for this Agreement (or any guaranty).
8.9 JUDGMENTS. Any judgments or arbitration awards are entered against the
Borrower or any Obligor.
8.10 DEATH. If the Borrower or any Obligor is a natural person, the Borrower or
such Obligor dies or becomes legally incompetent; if the Borrower or any Obligor
is a trust, a trustor dies or becomes legally incompetent; if the Borrower or
any Obligor is a partnership, any general partner dies or becomes legally
incompetent; or if the Borrower is a corporation, any principal officer or
majority stockholder dies.
8.11 MATERIAL ADVERSE CHANGE. A material adverse change occurs, or is reasonably
likely to occur, in the Borrower's (or any Obligor's) business condition
(financial or otherwise), operations, properties or prospects, or ability to
repay the credit.
8.12 GOVERNMENT ACTION. Any government authority takes action that the Bank
believes materially adversely affects the Borrower's or any Obligor's financial
condition or ability to repay.
8.13 DEFAULT UNDER RELATED DOCUMENTS. Any default occurs under any guaranty,
subordination agreement, security agreement, deed of trust, mortgage, or other
document required by or delivered in connection with this Agreement or any such
document is no longer in effect, or any guarantor purports to revoke or disavow
the guaranty.
8.14 OTHER BREACH UNDER AGREEMENT. A default occurs under any other term or
condition of this Agreement not specifically referred to in this Article.
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ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to the Bank and all financial covenants will be made under
generally accepted accounting principles, consistently applied or another basis
acceptable to the Bank.
9.2 GOVERNING LAW. This Agreement is governed by New Jersey law.
9.3 SUCCESSORS AND ASSIGNS. This Agreement is binding on the Borrower's and the
Bank's successors and assignees. The Borrower agrees that it may not assign this
Agreement without the Bank's prior consent.
9.4 ARBITRATION AND WAIVER OF JURY TRIAL. This paragraph concerns the resolution
of any controversies or claims between the parties, whether arising in contract,
tort or by statute, including but not limited to controversies or claims that
arise out of or relate to: (i) this agreement (including any renewals,
extensions or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision only,
the term "parties" shall include any parent corporation, subsidiary or affiliate
of the Bank involved in the servicing, management or administration of any
obligation described or evidenced by this agreement. (b) At the request of any
party to this agreement, any Claim shall be resolved by binding arbitration in
accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the "Act").
The Act will apply even though this agreement provides that it is governed by
the law of a specified state. The arbitration will take place on an individual
basis without resort to any form of class action. (c) Arbitration proceedings
will be determined in accordance with the Act, the then-current rules and
procedures for the arbitration of financial services disputes of the American
Arbitration Association or any successor thereof ("AAA"), and the terms of this
paragraph. In the event of any inconsistency, the terms of this paragraph shall
control. If AAA is unwilling or unable to (i) serve as the provider of
arbitration or (ii) enforce any provision of this arbitration clause, any party
to this agreement may substitute another arbitration organization with similar
procedures to serve as the provider of arbitration. (d) The arbitration shall be
administered by AAA and conducted, unless otherwise required by law, in any U.S.
state where real or tangible personal property collateral for this credit is
located or if there is no such collateral, in the state specified in the
governing law section of this agreement. All Claims shall be determined by one
arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon
the request of any party, the Claims shall be decided by three arbitrators. All
arbitration hearings shall commence within ninety (90) days of the demand for
arbitration and close within ninety (90) days of commencement and the award of
the arbitrator(s) shall be issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good cause, may extend
the commencement of the hearing for up to an additional sixty (60) days. The
arbitrator(s) shall provide a concise written statement of reasons for the
award. The arbitration award may be submitted to any court having jurisdiction
to be confirmed, judgment entered and enforced. (e) The arbitrator(s) will give
effect to statutes of limitation in determining any Claim and may dismiss the
arbitration on the basis that the Claim is barred. For purposes of the
application of the statute of limitations, the service on AAA under applicable
AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any
dispute concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the power
to award legal fees pursuant to the terms of this agreement. (f) This paragraph
does not limit the right of any party to: (i) exercise self-help remedies, such
as but not limited to, setoff; (ii) initiate judicial or non-judicial
foreclosure against any real or personal property collateral; (iii) exercise any
judicial or power of sale rights, or (iv) act in a court of law to obtain an
interim remedy, such as but not limited to, injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary
remedies. (g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration. (H) BY AGREEING TO BINDING
ARBITRATION, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIM_ BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT INTENDING
IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT
ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY
HAVE TO A
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TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
9.5 SEVERABILITY; WAIVERS. IF ANY PART OF this Agreement is not enforceable, the
rest of the Agreement may be enforced. The Bank retains all rights, even if it
makes a loan after default. If the Bank waives a default, it may enforce a later
default. Any consent or waiver under this Agreement must be in writing.
9.6 ATTORNEYS' FEES. The Borrower shall reimburse the Bank for any reasonable
costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. To the extent permitted by
law, as used in this paragraph, "attorneys' fees" includes the allocated costs
of the Bank's in-house counsel.
9.7 INDIVIDUAL LIABILITY. If the Borrower is a natural person, the Bank may
proceed against the Borrower's business and non-business property in enforcing
this and other agreements relating to this loan. If the Borrower is a
partnership, the Bank may proceed against the business and non-business property
of each general partner of the Borrower in enforcing this and other agreements
relating to this loan.
9.8 Joint AND SEVERAL LIABILITY. If two or more Borrowers sign this Agreement,
each Borrower agrees that it is jointly and severally liable to the Bank for the
payment of all obligations arising under this Agreement, and that such liability
is independent of the obligations of the other Borrowers.
9.9 ONE AGREEMENT. This Agreement and any related security or other agreements
required by this Agreement, collectively: (a) represent the sum of the
understandings and agreements between the Bank and the Borrower concerning this
credit; (b) replace any prior oral or written agreements between the Bank and
the Borrower concerning this credit; and (c) are intended by the Bank and the
Borrower as the final, complete and exclusive statement of the terms agreed to
by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
9.10 INDEMNIFICATION. The Borrower will indemnify and hold the Bank harmless
from any loss, liability, damages, judgments, and costs of any kind relating to
or arising directly or indirectly out of (a) this Agreement or any document
required hereunder, (b) any credit extended or committed by the Bank to the
Borrower hereunder, and (C) ANY litigation or proceeding related to or arising
out of this Agreement, any such document, or any such credit. This indemnity
includes but is not limited to attorneys' fees (including the allocated cost of
in-house counsel). This indemnity extends to the Bank, its parent, subsidiaries
and all of their directors, officers, employees, agents, successors, attorneys,
and assigns. This indemnity will survive repayment of the Borrower's obligations
to the Bank. All sums due to the Bank hereunder shall be obligations of the
Borrower, due AND PAYABLE IMMEDIATELY without demand.
9.11 NOTICES. Unless otherwise provided in this Agreement or in another
agreement between the Bank and the Borrower, all notices required under this
Agreement shall be personally delivered or sent by first class mail, postage
prepaid, or by overnight courier. Notices to the Bank shall be sent to the
address shown on the Borrower's latest billing statement. Notices to the
Borrower shall be sent to the Borrower's address in the Bank's records. Notices
and other communications shall be effective (i) if mailed, upon the earlier of
receipt or five (5) days after deposit in the U.S. mail, first class, postage
prepaid, or (ii) if hand-delivered, by courier or otherwise, when delivered.
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9.12 HEADINGS. Article and paragraph headings are for reference only and shall
not affect the interpretation or meaning of any provisions of this Agreement.
9.13 COUNTERPARTS. This Agreement may be executed in as many counterparts as
necessary or convenient, and by the different parties on separate counterparts
each of which, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same agreement.
9.14 INFORMATION Verification. The Borrower authorizes the Bank at any time to
verify or check any information given by the Borrower to the Bank, check the
Borrower's credit references, verify employment, and receive from and give
information to credit reporting agencies.
9.15 LIMITATION OF INTEREST AND OTHER CHARGES: If, at any time, the rate of
interest, together with all amounts which constitute interest and which are
reserved, charged or taken by the Bank as compensation for fees, services or
expenses incidental to the making, negotiating or collection of the loan
evidenced hereby, shall be deemed by any competent court of law, governmental
agency or tribunal to exceed the maximum rate of interest permitted to be
charged by the Bank to the Borrower under applicable law, then, during such time
as such rate of interest would be deemed excessive, that portion of each sum
paid attributable to that portion of such interest rate that exceeds the maximum
rate of interest so permitted shall be deemed a voluntary prepayment of
principal. As used herein, the term "applicable law" shall mean the law in
effect as of the date hereof; provided, however, that in the event there is a
change in the law which results in a higher permissible rate of interest, then
this Agreement shall be governed by such new law as of its effective date.
This Agreement is executed as of the date stated at the top of the first page.
-9-
Bank:
Bank of America, N.A.
By:
--------------------------------
Xxxxxxx Xxxxx, Officer
Borrower:
SWK Technologies
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, President
By: /s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx, Vice President
--------------------------------------------------------------------------------
AFFILIATE SHARING NOTICE
--------------------------------------------------------------------------------
From time to time the Bank may share information about the Borrower's experience
with Bank of America Corporation (or any successor company) and its subsidiaries
and affiliated companies ("Bank of America Affiliates"). The Bank may also share
information contained in any applications and information it may obtain about
the Borrower from outside sources with the Bank of America Affiliates, provided
if the Borrower is an individual the Borrower may instruct the Bank that the
Borrower prefers that the Bank not share this information with the Bank of
America Affiliates by (1) calling the Bank at 0.000.000.0000; (2) sending an
email through Contact Us at xxx.xxxxxxxxxxxxx.xxx; or (3) contacting the
Borrower's relationship manager or local banking center. To help the Bank
complete the Borrower's request, the Borrower should include the Borrower's
name, address, phone number, account number(s) and social security number. If
the Borrower makes this election, certain products or services may not be made
available to the Borrower. This request will apply to information from
applications, consumer reports and other outside sources only, and may take six
to eight weeks to be fully effective. Through the normal course of doing
business, including servicing the Borrower's accounts and better serving the
Borrower's financial needs, the Bank will continue to share transaction and
account experience information, as well as other general information among Bank
of America Affiliates.
-00-
XXXX XX XXXXXXX
BORROWER: SWK Technologies
GUARANTOR: Xxxxxxx Xxxx
CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned ("Guarantor")
hereby unconditionally guarantees and promises to pay promptly to Bank of
America, N.A., its subsidiaries and affiliates (collectively, "Bank"), or order,
in lawful money of the United States, any and all Indebtedness of SWK
Technologies ("Borrower") to Bank when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter. The liability of
Guarantor under this Guaranty is not limited as to the principal amount of the
Indebtedness guaranteed and includes, without limitation, liability for all
interest, fees, indemnities (including, without limitation, hazardous waste
indemnities), and other costs and expenses relating to or arising out of the
Indebtedness and for all swap, option, or forward obligations now or hereafter
owing from Borrower to Bank. The liability of Guarantor is continuing and
relates to any Indebtedness, including that arising under successive
transactions which shall either continue the Indebtedness or from time to time
renew it after it has been satisfied. This Guaranty is cumulative and does not
supersede any other outstanding guaranties, and the liability of Guarantor under
this Guaranty is exclusive of Guarantor's liability under any other guaranties
signed by Guarantor. If multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and several.
2. Definitions.
(a) "Borrower" shall mean the individual or the entity named in
Paragraph 1 of this Guaranty and, if more than one, then any one or more of
them.
(b) "Guarantor" shall mean the individual or the entity signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect or
acquired by Bank by assignment, succession, or otherwise, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, held or to be held by Bank for its own account or as agent
for another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable
attorneys' fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of
Borrower to Bank. Indebtedness also includes, without limitation, all
obligations of Borrower arising under any interest rate, credit, commodity
or equity swap, cap, floor, collar, forward foreign exchange transaction,
currency swap, cross currency rate swap, currency option, securities puts,
calls, collars, options or forwards or any combination of, or option with
respect to, these or similar transactions now or hereafter entered into
between Borrower and Bank.
-1-
(d) "Loan Documents" shall mean loan agreements between Borrower and
Bank, promissory notes from Borrower in favor of Bank, and all other
agreements, documents, and instruments evidencing any of the Indebtedness,
and deeds of trust, mortgages, security agreements, and other agreements,
documents, and instruments executed by Borrower in connection with such
loan agreements, promissory notes, and other agreements, documents, and
instruments evidencing any of the indebtedness, all as now in effect and as
hereafter amended, restated, renewed, or superseded.
3. Obliqations Independent. The obligations hereunder are independent of
the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Riqhts of Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or any
part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or any
Indebtedness and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale thereof
as Bank in its discretion may determine;
(d) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness; and
(e) permit the Indebtedness to exceed Guarantor's liability under this
Guaranty, and Guarantor agrees that any amounts received by Bank from any
source other than Guarantor shall be deemed to be applied first to any
portion of the Indebtedness not guaranteed by Guarantor.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness
has been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor's obligations under this Guaranty. Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express intent of
Guarantor that Guarantor's obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses. Guarantor
waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability of
Borrower;
(c) any defense based on any claim that Guarantor's obligations exceed
or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor's
liability hereunder.
-2-
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be in excess
of Guarantor's liability hereunder, Guarantor waives to the extent permitted by
applicable law any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence or
performance of this Guaranty, and Guarantor waives to the extent permitted by
applicable law any right to enforce any remedy that Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, notices OF the existence, creation, or incurring
OF new or additional Indebtedness to which this Guaranty applies or any other
Indebtedness of Borrower to Bank, and notices of any fact that might increase
Guarantor's risk.
9. Security. To secure all of Guarantor's obligations hereunder, Guarantor
assigns and grants to Bank a security interest in all moneys, securities, and
other property OF Guarantor now or hereafter in the possession of Bank, all
deposit accounts of Guarantor maintained with Bank, and all proceeds thereof.
Upon default or breach OF any of Guarantor's obligations to Bank, Bank may apply
any deposit account to reduce the Indebtedness, and may foreclose any collateral
as provided in the Uniform Commercial Code and in any security agreements
between Bank and Guarantor.
10. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. In addition to Guarantor's waiver
of any right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Bank, Guarantor agrees that,
if Bank so requests, Guarantor shall not demand, take; or receive from Borrower,
by setoff or in any other manner, payment OF any other obligations of Borrower
to Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation of such
waiver or agreement, such payments shall be received by Guarantor as trustee for
Bank and shall be paid over to Bank on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that Guarantor may now or hereafter have on any property of Borrower is hereby
subordinated to any security interest, lien, or other encumbrance that Bank may
have on any such property.
11. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect
to future transactions, unless there is a continuing consideration as to
such transactions that Guarantor does not renounce. Such revocation shall
be effective upon actual receipt by Bank, at the address shown below or at
such other address as may have been provided to Guarantor by Bank, of
written notice of revocation. Revocation shall not affect any of
Guarantor's obligations or Bank's rights with respect to transactions
committed or entered into prior to Bank's receipt of such notice,
regardless of whether or not the Indebtedness related to such transactions,
before or after revocation, has been incurred, renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms,
including time for payment or increase or decrease of the rate of interest
thereon, and regardless OF any other act or omission of Bank authorized
hereunder. Revocation by Guarantor shall not affect any obligations OF any
other guarantor.
-3-
(b) In the event of the death of a Guarantor, the liability of the
estate of the deceased Guarantor shall continue in full force and effect as
to (i) the Indebtedness existing at the date of death, and any renewals or
extensions thereof, and (ii) loans or advances made to or for the account
of Borrower after the date of the death of the deceased Guarantor pursuant
to a commitment made by Bank to Borrower prior to the date of such death.
As to all surviving Guarantors, this Guaranty shall continue in full force
and effect after the death of a Guarantor, not only as to the Indebtedness
existing at that time, but also as to the indebtedness thereafter incurred
by Borrower to Bank.
(c) Guarantor acknowledges and agrees that this Guaranty may be
revoked only in accordance with the foregoing provisions of this paragraph
and shall not be revoked simply as a result of any change in name,
location, or composition or structure of Borrower, the dissolution of
Borrower, or the termination, increase, decrease, or other change of any
personnel or owners of Borrower.
12. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
13. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately if requested by
Bank.
14. No Setoff or Deductions; Taxes.
(a) Guarantor represents and warrants that it is organized and
resident in the United States of America. All payments by Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including, without limitation, for any
and all present and future taxes. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the
payment from one of its U.S. resident offices to Bank so that no
withholding tax is imposed on the payment. Notwithstanding the foregoing,
if Guarantor makes a payment under this Guaranty to which withholding tax
applies or if any taxes (other than taxes on net income (i) imposed by the
country or any subdivision of the country in which Bank's principal office
or actual lending office is located and (ii) measured by the United States
taxable income Bank would have received if all payments under or in respect
of this Guaranty were exempt from taxes levied by Guarantor's country) are
at any time imposed on any payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph,
Guarantor shall pay all such taxes to the relevant authority in accordance
with applicable law such that Bank receives the sum it would have received
had no such deduction or withholding been made (or, if Guarantor cannot
legally comply with the foregoing, Guarantor shall pay to Bank such
additional amounts as will result in Bank receiving the sum it would have
received had no such deduction or withholding been made). Further,
Guarantor shall also pay to Bank, on demand, all additional amounts that
Bank specifies as necessary to preserve the after-tax yield Bank would have
received if such taxes had not been imposed.
(b) Guarantor shall promptly provide Bank with an original receipt or
certified copy issued by the relevant authority evidencing the payment of
any such amount required to be deducted or withheld.
15. Information Relatinq to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
16. Borrower's Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners,
-4-
members, managers, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor's
liability set forth herein.
17. Information Relatinq to Guarantor. Guarantor authorizes Bank to verify
or check any information given by Guarantor to Bank, check Guarantor's credit
references, verify employment, and obtain credit reports. Guarantor acknowledges
and agrees that the authorizations provided in this paragraph apply to any
individual general partner of Guarantor and to Guarantor's spouse and any such
general partner's spouse if Guarantor or such general partner is married and
lives in a community property state.
18. Chanqe of Status. Any Guarantor that is a business entity shall not
enter into any consolidation, merger, or other combination unless Guarantor is
the surviving business entity. Further, Guarantor shall not change its legal
structure unless (a) Guarantor obtains the prior written consent of Bank and (b)
all Guarantor's obligations under this Guaranty are assumed by the new business
entity.
19. Remedies. If Guarantor fails to fulfill its duty to pay all
Indebtedness guaranteed hereunder, Bank shall have all of the remedies of a
creditor and, to the extent applicable, of a secured party, under all applicable
law. Without limiting the foregoing, Bank may, at its option and without notice
or demand:
(a) declare any Indebtedness due and payable at once;
(b) take possession of any collateral pledged by Borrower or
Guarantor, wherever located, and sell, resell, assign, transfer, and
deliver all or any part of the collateral at any public or private sale or
otherwise dispose of any or all of the collateral in its then condition,
for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale. Further, Bank,
unless prohibited by law the provisions of which cannot be waived, may
purchase all or any part of the collateral to be sold, free from and
discharged of all trusts, claims, rights of redemption and equities of
Borrower or Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any collateral through any nationally recognized broker-dealer,
investment banker, or any other method common in the securities industry
shall be deemed a commercially reasonable sale under the Uniform Commercial
Code or any other equivalent statute or federal law, and expressly waives
notice thereof except as provided herein; and
(c) set off against any or all liabilities of Guarantor all money owed
by Bank or any of its agents or affiliates in any capacity to Guarantor,
whether or not due, and also set off against all other liabilities of
Guarantor to Bank all money owed by Bank in any capacity to Guarantor. If
exercised by Bank, Bank shall be deemed to have exercised such right of
setoff and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
20. Notices. All notices required under this Guaranty shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Guaranty, or sent by facsimile to
the fax numbers listed on the signature page, or to such other addresses as Bank
and Guarantor may specify from time to time in writing. Notices sent by (a)
first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight courier shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
21. Successors and Assigns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's indorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to
-5-
any assignee or purchaser, or any prospective assignee or purchaser, of all or
part of the Indebtedness any and all information in Bank's possession concerning
Guarantor, this Guaranty, and any security for this Guaranty.
22. Amendments, Waivers, and Severability. No provision of this Guaranty
may be amended or waived except in writing. No failure by Bank to exercise, and
no delay in exercising, any of its rights, remedies, or powers shall operate as
a waiver thereof, and no single or partial exercise of any such right, remedy,
or power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Bank (a) in the enforcement of this Guaranty or (b) in the
preservation, protection, or enforcement of any rights of Bank in any case
commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute. 24. Governing Law
and Jurisdiction. This Guaranty shall be governed by and construed and enforced
in accordance with federal law and the law of the State of New Jersey.
Jurisdiction and venue for any action or proceeding to enforce this Guaranty
shall be the forum appropriate for such action or proceeding against Borrower,
to which jurisdiction Guarantor irrevocably submits and to which venue Guarantor
waives to the fullest extent permitted by law any defense asserting an
inconvenient forum in connection therewith. It is provided, however, that if
Guarantor owns property in another state, notwithstanding that the forum for
enforcement action is elsewhere, Bank may commence a collection proceeding in
any state in which Guarantor owns property for the purpose of enforcing
provisional remedies against such property. Service of process by Bank in
connection with such action or proceeding shall be binding on Guarantor if sent
to Guarantor by registered or certified mail at its address specified below. 25.
Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision
only, the term "parties" shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In
the event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted,
unless otherwise required by law, in any U. S. state where real or tangible
personal property collateral for this credit is located or if there is no
such collateral, in the state specified in the governing law section of
this agreement. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator(s) shall be issued
within 30 days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing
for up to an additional 60 days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed, judgment
entered and enforced.
-6-
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or non-judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(h) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT
INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT
ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
26. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY
REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT
SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS
AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT
LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY
PROVIDES TO THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES, AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
Executed this 1st day of August, 2005.
/s/ Xxxxxxx Xxxx
-------------------------
Xxxxxxx Xxxx
-7-
Address for notices to Bank:
Business Credit Services-Documentation & Servicing
Premier Banking /Small Business Banking
West Seneca-Credit Services
Attn: Credit Services
Facsimile: 000 000-0000
Address for notices to Guarantor:
Xxxxxxx Xxxx
00 Xxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Facsimile:
-8-
BANK OF AMERICA
BORROWER: SWK Technologies
GUARANTOR: Xxxx Xxxxxx
CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned ("Guarantor")
hereby unconditionally guarantees and promises to pay promptly to Bank of
America, N.A., its subsidiaries and affiliates (collectively, "Bank"), or order,
in lawful money of the United States, any and all Indebtedness of SWK
Technologies ("Borrower") to Bank when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter. The liability of
Guarantor under this Guaranty is not limited as to the principal amount of the
Indebtedness guaranteed and includes, without limitation, liability for all
interest, fees, indemnities (including, without limitation, hazardous waste
indemnities), and other costs and expenses relating to or arising out of the
Indebtedness and for all swap, option, or forward obligations now or hereafter
owing from Borrower to Bank. The liability of Guarantor is continuing and
relates to any Indebtedness, including that arising under successive
transactions which shall either continue the indebtedness or from time to time
renew it after it has been satisfied. This Guaranty is cumulative and does not
supersede any other outstanding guaranties, and the liability of Guarantor under
this Guaranty is exclusive of Guarantor's liability under any other guaranties
signed by Guarantor. If multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and several.
2. Definitions.
(a) "Borrower" shall mean the individual or the entity named in
Paragraph 1 of this Guaranty and, if more than one, then any one or more of
them.
(b) "Guarantor" shall mean the individual or the entity signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect or
acquired by Bank by assignment, succession, or otherwise, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, held or to be held by Bank for its own account or as agent
for another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable
attorneys' fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of
Borrower to Bank. Indebtedness also includes, without limitation, all
obligations of Borrower arising under any interest rate, credit, commodity
or equity swap, cap, floor, collar, forward foreign exchange transaction,
currency swap, cross currency rate swap, currency option, securities puts,
calls, collars, options or forwards or any combination of, or option with
respect to, these or similar transactions now or hereafter entered into
between Borrower and Bank.
-1-
(d) "Loan Documents" shall mean loan agreements between Borrower and
Bank, promissory notes from Borrower in favor of Bank, and all other
agreements, documents, and instruments evidencing any of the indebtedness,
and deeds of trust, mortgages, security agreements, and other agreements,
documents, and instruments executed by Borrower in connection with such
loan agreements, promissory notes, and other agreements, documents, and
instruments evidencing any of the Indebtedness, all as now in effect and as
hereafter amended, restated, renewed, or superseded.
3. Obligations Independent. The obligations hereunder are independent of
the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. RLghts of Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or any
part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or any
Indebtedness and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale thereof
as Bank in its discretion may determine;
(d) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness; and
(e) permit the Indebtedness to exceed Guarantor's liability under this
Guaranty, and Guarantor agrees that any amounts received by Bank from any
source other than Guarantor shall be deemed to be applied first to any
portion of the Indebtedness not guaranteed by Guarantor.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness
has been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor's obligations under this Guaranty. Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express intent of
Guarantor that Guarantor's obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses. Guarantor
waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability of
Borrower;
(c) any defense based on any claim that Guarantor's obligations exceed
or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor's
liability hereunder.
-2-
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be in excess
of Guarantor's liability hereunder, Guarantor waives to the extent permitted by
applicable law any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence or
performance of this Guaranty, and Guarantor waives to the extent permitted by
applicable law any right to enforce any remedy that Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, notices of the existence, creation, or incurring
of new or additional Indebtedness to which this Guaranty applies or any other
Indebtedness of Borrower to Bank, and notices of any fact that might increase
Guarantor's risk.
9. Security. To secure all of Guarantor's obligations hereunder, Guarantor
assigns and grants to Bank a security interest in all moneys, securities, and
other property of Guarantor now or hereafter in the possession of Bank, all
deposit accounts of Guarantor maintained with Bank, and all proceeds thereof.
Upon default or breach of any of Guarantor's obligations to Bank, Bank may apply
any deposit account to reduce the Indebtedness, and may foreclose any collateral
as provided in the Uniform Commercial Code and in any security agreements
between Bank and Guarantor.
10. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. In addition to Guarantor's waiver
of any right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Bank, Guarantor agrees that,
if Bank so requests, Guarantor shall not demand, take, or receive from Borrower,
by setoff or in any other manner, payment OF any other obligations OF Borrower
to Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation OF such
waiver or agreement, such payments shall be received by Guarantor as trustee for
Bank and shall be paid over to Bank on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that Guarantor may now or hereafter have on any property OF Borrower is hereby
subordinated to any security interest, lien, or other encumbrance that Bank may
have on any such property.
11. Revocation OF Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect
to future transactions, unless there is a continuing consideration as to
such transactions that Guarantor does not renounce. Such revocation shall
be effective upon actual receipt by Bank, at the address shown below or at
such other address as may have been provided to Guarantor by Bank, of
written notice of revocation. Revocation shall not affect any OF
Guarantor's obligations or Bank's rights with respect to transactions
committed or entered into prior to Bank's receipt of such notice,
regardless of whether or not the Indebtedness related to such transactions,
before or after revocation, has been incurred, renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms,
including time for payment or increase or decrease of the rate of interest
thereon, and regardless of any other act or omission of Bank authorized
hereunder. Revocation by Guarantor shall not affect any obligations of any
other guarantor.
-3-
(b) In the event of the death of a Guarantor, the liability of the
estate of the deceased Guarantor shall continue in full force and effect as
to (i) the Indebtedness existing at the date of death, and any renewals or
extensions thereof, and (ii) loans or advances made to or for the account
of Borrower after the date of the death of the deceased Guarantor pursuant
to a commitment made by Bank to Borrower prior to the date of such death.
As to all surviving Guarantors, this Guaranty shall continue in full force
and effect after the death of a Guarantor, not only as to the Indebtedness
existing at that time, but also as to the Indebtedness thereafter incurred
by Borrower to Bank.
(c) Guarantor acknowledges and agrees that this Guaranty may be
revoked only in accordance with the foregoing provisions of this paragraph
and shall not be revoked simply as a result of any change in name,
location, or composition or structure of Borrower, the dissolution of
Borrower, or the termination, increase, decrease, or other change of any
personnel or owners of Borrower.
12. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
13. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such Indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately if requested by
Bank.
14. No Setoff or Deductions; Taxes.
(a) Guarantor represents and warrants that it is organized and
resident in the United States of America. All payments by Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including, without limitation, for any
and all present and future taxes. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the
payment from one OF its U.S. resident offices to Bank so that no
withholding tax is imposed on the payment. Notwithstanding the foregoing,
IF Guarantor makes a payment under this Guaranty to which withholding tax
applies or if any taxes (other than taxes on net income (i) imposed by the
country or any subdivision of the country in which Bank's principal office
or actual lending office is located and (ii) measured by the United States
taxable income Bank would have received IF all payments under or in respect
of this Guaranty were exempt from taxes levied by Guarantor's country) are
at any time imposed on any payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph,
Guarantor shall pay all such taxes to the relevant authority in accordance
with applicable law such that Bank receives the sum it would have received
had no such deduction or withholding been made (or, if Guarantor cannot
legally comply with the foregoing, Guarantor shall pay to Bank such
additional amounts as will result in Bank receiving the sum it would have
received had no such deduction or withholding been made). Further,
Guarantor shall also pay to Bank, on demand, all additional amounts that
Bank specifies as necessary to preserve the after-tax yield Bank would have
received if such taxes had not been imposed.
(b) Guarantor shall promptly provide Bank with an original receipt or
certified copy issued by the relevant authority evidencing the payment of
any such amount required to be deducted or withheld.
15. Information Relatinq to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any lime to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
16. Borrower's Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners,
-4-
members, managers, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor's
liability set forth herein.
17. Information Relating to Guarantor. Guarantor authorizes Bank to verify
or check any information given by Guarantor to Bank, check Guarantor's credit
references, verify employment, and obtain credit reports. Guarantor acknowledges
and agrees that the authorizations provided in this paragraph apply to any
individual general partner of Guarantor and to Guarantor's spouse and any such
general partner's spouse if Guarantor or such general partner is married and
lives in a community property state.
18. Change of Status. Any Guarantor that is a business entity shall not
enter into any consolidation, merger, or other combination unless Guarantor is
the surviving business entity. Further, Guarantor shall not change its legal
structure unless (a) Guarantor obtains the prior written consent of Bank and (b)
all Guarantor's obligations under this Guaranty are assumed by the new business
entity.
19. Remedies. If Guarantor fails to fulfill its duty to pay all
Indebtedness guaranteed hereunder, Bank shall have all of the remedies of a
creditor and, to the extent applicable, of a secured party, under all applicable
law. Without limiting the foregoing, Bank may, at its option and without notice
or demand:
(a) declare any Indebtedness due and payable at once;
(b) take possession of any collateral pledged by Borrower or
Guarantor, wherever located, and sell, resell, assign, transfer, and
deliver all or any part of the collateral at any public or private sale or
otherwise dispose of any or all of the collateral in its then condition,
for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale. Further, Bank,
unless prohibited by law the provisions of which cannot be waived, may
purchase all or any part of the collateral to be sold, free from and
discharged of all trusts, claims, rights of redemption and equities of
Borrower or Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any collateral through any nationally recognized broker-dealer,
investment banker, or any other method common in the securities industry
shall be deemed a commercially reasonable sale under the Uniform Commercial
Code or any other equivalent statute or federal law, and expressly waives
notice thereof except as provided'herein; and
(c) set off against any or all liabilities of Guarantor all money owed
by Bank or any of its agents or affiliates in any capacity to Guarantor,
whether or not due, and also set off against all other liabilities of
Guarantor to Bank all money owed by Bank in any capacity to Guarantor. If
exercised by Bank, Bank shall be deemed to have exercised such right of
setoff and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
20. Notices. All notices required under this Guaranty shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Guaranty, or sent by facsimile to
the fax numbers listed on the signature page, or to such other addresses as Bank
and Guarantor may specify from time to time in writing. Notices sent by (a)
first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight courier shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
21. Successors and Assigns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's indorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, self, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to
-5-
any assignee or purchaser, or any prospective assignee or purchaser, of all or
part of the Indebtedness any and all information in Bank's possession concerning
Guarantor, this Guaranty, and any security for this Guaranty.
22. Amendments, Waivers, and Severability. No provision of this Guaranty
may be amended or waived except in writing. No failure by Bank to exercise, and
no delay in exercising, any of its rights, remedies, or powers shall operate as
a waiver thereof, and no single or partial exercise of any such right, remedy,
or power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Bank (a) in the enforcement of this Guaranty or (b) in the
preservation, PROTECTION, OR enforcement OF ANY RIGHTS OF Bank IN ANY CASE
commenced by OR AGAINST GUARANTOR OR Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute.
24. Governing Law and Jurisdiction. This Guaranty shall be governed by and
construed and enforced in accordance with federal law and the law of the State
of New Jersey. Jurisdiction and venue for any action or proceeding to enforce
this Guaranty shall be the forum appropriate for such action or proceeding
against Borrower, to which jurisdiction Guarantor irrevocably submits and to
which venue Guarantor waives to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith. It is provided,
however, that if Guarantor owns property in another state, notwithstanding that
the forum for enforcement action is elsewhere, Bank may commence a collection
proceeding in any state in which Guarantor owns property for the purpose of
enforcing provisional remedies against such property. Service of process by Bank
in connection with such action or proceeding shall be binding on Guarantor if
sent to Guarantor by registered or certified mail at its address specified
below.
25. Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision
only, the term "parties" shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In
the event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted,
unless otherwise required by law, in any U. S. state where real or tangible
personal property collateral for this credit is located or if there is no
such collateral, in the state specified in the governing law section of
this agreement. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator(s) shall be issued
within 30 days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing
for up to an additional 60 days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed, judgment
entered and enforced.
-6-
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or non judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(h) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT
INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT
ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
26. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND
AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM
SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO
THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
Executed this 1st day of August, 2005.
/s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
-7-
Address for notices to Bank:
Business Credit Services-Documentation & Servicing
Premier Banking/Small Business Banking
West Seneca-Credit Services
Attn: Credit Service
Facsimile: 000 000-0000
Address for notices to Guarantor:
Xxxx Xxxxxx
0 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Facsimile:
-8-
BANK OF AMERICA
BORROWER: SWK Technologies
GUARANTOR: Xxxx Xxxxxx
CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned ("Guarantor")
hereby unconditionally guarantees and promises to pay promptly to Bank of
America, N.A., its subsidiaries and affiliates (collectively, "Bank"), or order,
in lawful money of the United States, any and all Indebtedness of SWK
Technologies ("Borrower") to Bank when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter. The liability of
Guarantor under this Guaranty is not limited as to the principal amount of the
Indebtedness guaranteed and includes, without limitation, liability for all
interest, fees, indemnities (including, without limitation, hazardous waste
indemnities), and other costs and expenses relating to or arising out of the
Indebtedness and for all swap, option, or forward obligations now or hereafter
owing from Borrower to Bank. The liability of Guarantor is continuing and
relates to any Indebtedness, including that arising under successive
transactions which shall either continue the Indebtedness or from time to time
renew it after it has been satisfied. This Guaranty is cumulative and does not
supersede any other outstanding guaranties, and the liability of Guarantor under
this Guaranty is exclusive of Guarantor's liability under any other guaranties
signed by Guarantor. if multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and several.
2. Definitions.
(a) "Borrower" shall mean the individual or the entity named in
Paragraph 1 of this Guaranty and, if more than one, then any one or more of
them.
(b) "Guarantor" shall mean the individual or the entity signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect or
acquired by Bank by assignment, succession, or otherwise, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, held or to be held by Bank for its own account or as agent
for another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable
attorneys' fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of
Borrower to Bank. Indebtedness also includes, without limitation, all
obligations of Borrower arising under any interest rate, credit, commodity
or equity swap, cap, floor, collar, forward foreign exchange transaction,
currency swap, cross currency rate swap, currency option, securities puts,
calls, collars, options or forwards or any combination of, or option with
respect to, these or similar transactions now or hereafter entered into
between Borrower and Bank.
-1-
(d) "Loan Documents" shall mean loan agreements between Borrower and
Bank, promissory notes from Borrower in favor of Bank, and all other
agreements, documents, and instruments evidencing any of the Indebtedness,
and deeds of trust, mortgages, security agreements, and other agreements,
documents, and instruments executed by Borrower in connection with such
loan agreements, promissory notes, and other agreements, documents, and
instruments evidencing any of the Indebtedness, all as now in effect and as
hereafter amended, restated, renewed, or superseded.
3. Obligations Independent. The obligations hereunder are independent of
the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Rights of Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or any
part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or any
Indebtedness and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale thereof
as Bank in its discretion may determine;
(d) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness; and
(e) permit the Indebtedness to exceed Guarantor's liability under this
Guaranty, and Guarantor agrees that any amounts received by Bank from any
source other than Guarantor shall be deemed to be applied first to any
portion of the Indebtedness not guaranteed by Guarantor.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness
has been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor's obligations under this Guaranty. Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express intent of
Guarantor that Guarantor's obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses. Guarantor
waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability of
Borrower;
(c) any defense based on any claim that Guarantor's obligations exceed
or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor's
liability hereunder.
-2-
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be in excess
of Guarantor's liability hereunder, Guarantor waives to the extent permitted by
applicable law any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence or
performance of this Guaranty, and Guarantor waives to the extent permitted by
applicable law any right to enforce any remedy that Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, notices of the existence, creation, or incurring
of new or additional Indebtedness to which this Guaranty applies or any other
Indebtedness of Borrower to Bank, and notices of any fact that might increase
Guarantor's risk.
9. Security. To secure all of Guarantor's obligations hereunder, Guarantor
assigns and grants to Bank a security interest in all moneys, securities, and
other property of Guarantor now or hereafter in the possession of Bank, all
deposit accounts of Guarantor maintained with Bank, and all proceeds thereof.
Upon default or breach of any of Guarantor's obligations to Bank, Bank may apply
any deposit account to reduce the indebtedness, and may foreclose any collateral
as provided in the Uniform Commercial Code and in any security agreements
between Bank and Guarantor.
10. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. In addition to Guarantor's waiver
of any right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Bank, Guarantor agrees that,
if Bank so requests, Guarantor shall not demand, take, or receive from Borrower,
by setoff or in any other manner, payment of any other obligations of Borrower
to Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation of such
waiver or agreement, such payments shall be received by Guarantor as trustee for
Bank and shall be paid over to Bank on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that Guarantor may now or hereafter have on any property of Borrower is hereby
subordinated to any security interest, lien, or other encumbrance that Bank may
have on any such property.
11. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect
to future transactions, unless there is a continuing consideration as to
such transactions that Guarantor does not renounce. Such revocation shall
be effective upon actual receipt by Bank, at the address shown below or at
such other address as may have been provided to Guarantor by Bank, of
written notice of revocation. Revocation shall not affect any of
Guarantor's obligations or Bank's rights with respect to transactions
committed or entered into prior to Bank's receipt of such notice,
regardless of whether or not the Indebtedness related to such transactions,
before or after revocation, has been incurred, renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms,
including time for payment or increase or decrease of the rate of interest
thereon, and regardless of any other act or omission of Bank authorized
hereunder. Revocation by Guarantor shall not affect any obligations of any
other guarantor.
-3-
(b) in the event of the death of a Guarantor, the liability of the
estate of the deceased Guarantor shall continue in full force and effect as
to (i) the Indebtedness existing at the date of death, and any renewals or
extensions thereof, and (ii) loans or advances made to or for the account
of Borrower after the date of the death of the deceased Guarantor pursuant
to a commitment made by Bank to Borrower prior to the date of such death.
As to all surviving Guarantors, this Guaranty shall continue in full force
and effect after the death of a Guarantor, not only as to the Indebtedness
existing at that time, but also as to the Indebtedness thereafter incurred
by Borrower to Bank.
(c) Guarantor acknowledges and agrees that this Guaranty may be
revoked only in accordance with the foregoing provisions of this paragraph
and shall not be revoked simply as a result of any change in name,
location, or composition or structure of Borrower, the dissolution of
Borrower, or the termination, increase, decrease, or other change of any
personnel or owners of Borrower.
12. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
13. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately if requested by
Bank.
14. No Setoff or Deductions; Taxes.
(a) Guarantor represents and warrants that it is organized and
resident in the United States of America. All payments by Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including, without limitation, for any
and all present and future taxes. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the
payment from one of its U.S. resident offices to Bank so that no
withholding tax is imposed on the payment. Notwithstanding the foregoing,
if Guarantor makes a payment under this Guaranty to which withholding tax
applies or if any taxes (other than taxes on net income (i) imposed by the
country or any subdivision of the country in which Bank's principal office
or actual lending office is located and (ii) measured by the United States
taxable income Bank would have received if ail payments under or in respect
of this Guaranty were exempt from taxes levied by Guarantor's country) are
at any time imposed on any payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph,
Guarantor shall pay all such taxes to the relevant authority in accordance
with applicable law such that Bank receives the sum it would have received
had no such deduction or withholding been made (or, if Guarantor cannot
legally comply with the foregoing, Guarantor shall pay to Bank such
additional amounts as will result in Bank receiving the sum it would have
received had no such deduction or withholding been made). Further,
Guarantor shall also pay to Bank, on demand, all additional amounts that
Bank specifies as necessary to preserve the after-tax yield Bank would have
received if such taxes had not been imposed.
(b) Guarantor shall promptly provide Bank with an original receipt or
certified copy issued by the relevant authority evidencing the payment of
any such amount required to be deducted or withheld.
15. Information Relating to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
16. Borrower's Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners,
-4-
members, managers, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor's
liability set forth herein.
17. Information Relatinct to Guarantor. Guarantor authorizes Bank to verify
or check any information given by Guarantor to Bank, check Guarantor's credit
references, verify employment, and obtain credit reports. Guarantor acknowledges
and agrees that the authorizations provided in this paragraph apply to any
individual general partner of Guarantor and to Guarantor's spouse and any such
general partner's spouse if Guarantor or such general partner is married and
lives in a community property state.
18. Change of Status. Any Guarantor that is a business entity shall not
enter into any consolidation, merger, or other combination unless Guarantor is
the surviving business entity. Further, Guarantor shall not change its legal
structure unless (a) Guarantor obtains the prior written consent of Bank and (b)
all Guarantor's obligations under this Guaranty are assumed by the new business
entity.
19. Remedies. If Guarantor fails to fulfill its duty to pay all
Indebtedness guaranteed hereunder, Bank shall have all of the remedies of a
creditor and, to the extent applicable, of a secured party, under all applicable
law. Without limiting the foregoing, Bank may, at its option and without notice
or demand:
(a) declare any Indebtedness due and payable at once;
(b) take possession of any collateral pledged by Borrower or
Guarantor, wherever located, and sell, resell, assign, transfer, and
deliver all or any part of the collateral at any public or private sale or
otherwise dispose of any or all of the collateral in its then condition,
for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale. Further, Bank,
unless prohibited by law the provisions of which cannot be waived, may
purchase all or any part of the collateral to be sold, free from and
discharged of all trusts, claims, rights of redemption and equities of
Borrower or Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any collateral through any nationally recognized broker-dealer,
investment banker, or any other method common in the securities industry
shall be deemed a commercially reasonable sale under the Uniform Commercial
Code or any other equivalent statute or federal law, and expressly waives
notice thereof except as provided herein; and
(c) set off against any or all liabilities of Guarantor all money owed
by Bank or any of its agents or affiliates in any capacity to Guarantor,
whether or not due, and also set off against all other liabilities of
Guarantor to Bank all money owed by Bank in any capacity to Guarantor. If
exercised by Bank, Bank shall be deemed to have exercised such right of
setoff and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
20. Notices. All notices required under this Guaranty shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Guaranty, or sent by facsimile to
the fax numbers listed on the signature page, or to such other addresses as Bank
and Guarantor may specify from time to time in writing. Notices sent by (a)
first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight courier shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
21. Successors and Assigns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's indorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to
-5-
any assignee or purchaser, or any prospective assignee or purchaser, of all or
part of the Indebtedness any and all information in Bank's possession concerning
Guarantor, this Guaranty, and any security for this Guaranty.
22. Amendments, Waivers, and Severability. No provision of this Guaranty
may be amended or waived except in writing. No failure by Bank to exercise, and
no delay in exercising, any of its rights, remedies, or powers shall operate as
a waiver thereof, and no single or partial exercise of any such right, remedy,
or power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Bank (a) in the enforcement of this Guaranty or (b) in the
preservation, protection, or enforcement of any rights of Bank in any case
commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute.
24. Governinq Law and Jurisdiction. This Guaranty shall be governed by and
construed and enforced in accordance with federal law and the law of the State
of New Jersey. Jurisdiction and venue for any action or proceeding to enforce
this Guaranty shall be the forum appropriate for such action or proceeding
against Borrower, to which jurisdiction Guarantor irrevocably submits and to
which venue Guarantor waives to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith. It is provided,
however, that if Guarantor owns property in another state, notwithstanding that
the forum for enforcement action is elsewhere, Bank may commence a collection
proceeding in any state in which Guarantor owns property for the purpose of
enforcing provisional remedies against such property. Service of process by Bank
in connection with such action or proceeding shall be binding on Guarantor if
sent to Guarantor by registered or certified mail at its address specified
below.
25. Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision
only, the term "parties" shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In
the event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted,
unless otherwise required by law, in any U. S. state where real or tangible
personal property collateral for this credit is located or if there is no
such collateral, in the state specified in the governing law section of
this agreement. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator(s) shall be issued
within 30 days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing
for up to an additional 60 days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed, judgment
entered and enforced.
-6-
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or non-judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(h) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT
INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT
ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
26. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND
AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM
SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO
THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
Executed this 1st day of August, 2005.
/s/ Xxxx Xxxxxx
--------------------
Xxxx Xxxxxx
-7-
Address for notices to Bank:
Business Credit Services-Documentation & Servicing
Premier Banking/Small Business Banking
West Seneca-Credit Service
Attn: Credit Service
Facsimile: 000 000-0000
Address for notices to Guarantor:
Xxxx Xxxxxx
0 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Facsimile:
-8-
BANK OF AMERICA
BORROWER: SWK Technologies
GUARANTOR: Trey Resource Inc
CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned ("Guarantor")
hereby unconditionally guarantees and promises to pay promptly to Bank of
America, N.A., its subsidiaries and affiliates (collectively, "Bank"), or order,
in lawful money of the United States, any and all Indebtedness of SWK
Technologies ("Borrower") to Bank when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter. The liability of
Guarantor under this Guaranty is not limited as to the principal amount of the
Indebtedness guaranteed and includes, without limitation, liability for all
interest, fees, indemnities (including, without limitation, hazardous waste
indemnities), and other costs and expenses relating to or arising out of the
Indebtedness and for all swap, option, or forward obligations now or hereafter
owing from Borrower to Bank. The liability of Guarantor is continuing and
relates to any Indebtedness, including that arising under successive
transactions which shall either continue the Indebtedness or from time to time
renew it after it has been satisfied. This Guaranty is cumulative and does not
supersede any other outstanding guaranties, and the liability of_Guarantor under
this. Guaranty is exclusive of Guarantor's liability under any other guaranties
signed by Guarantor. If multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and several. Guarantor's
liability hereunder shall not exceed at any one time the largest amount during
the period commencing with Guarantor's execution of this Guaranty and thereafter
that would not render Guarantor's obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any
comparable provisions of any applicable state law.
2. Definitions.
(a) "Borrower" shall mean the individual or the entity named in
Paragraph 1 of this Guaranty and, if more than one, then any one or more of
them.
(b) "Guarantor" shall mean the individual or the entity signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect or
acquired by Bank by assignment, succession, or otherwise, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, held or to be held by Bank for its own account or as agent
for another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable
attorneys' fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of
Borrower to Bank. Indebtedness also includes, without limitation, all
obligations of Borrower arising under any interest rate, credit, commodity
or equity swap, cap, floor, collar, forward foreign exchange transaction,
currency swap, cross currency rate swap, currency option, securities puts,
calls, collars, options or forwards or any combination of, or option with
respect to, these or similar transactions now or hereafter entered into
between Borrower and Bank.
-1-
(d) "Loan Documents" shall mean loan agreements between Borrower and
Bank, promissory notes from Borrower in favor of Bank, and ail other
agreements, documents, and instruments evidencing any of the Indebtedness,
and deeds of trust, mortgages, security agreements, and other agreements,
documents, and instruments executed by Borrower in connection with such
loan agreements, promissory notes, and other agreements, documents, and
instruments evidencing any of the Indebtedness, all as now in effect and as
hereafter amended, restated, renewed, or superseded.
3. Obliqations Independent. The obligations hereunder are independent of
the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Riqhts of Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or any
part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or any
Indebtedness and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale thereof
as Bank in its discretion may determine;
(d) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness; and
(e) permit the Indebtedness to exceed Guarantor's liability under this
Guaranty, and Guarantor agrees that any amounts received by Bank from any
source other than Guarantor shall be deemed to be applied first to any
portion of the Indebtedness not guaranteed by Guarantor.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness
has been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor's obligations under this Guaranty. Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express intent of
Guarantor that Guarantor's obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses. Guarantor
waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability of
Borrower;
(c) any defense based on any claim that Guarantor's obligations exceed
or are more burdensome than those of Borrower; and (d) the benefit of any
statute of limitations affecting Guarantor's liability hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be
-2-
in excess of Guarantor's liability hereunder, Guarantor waives to the extent
permitted by applicable law any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory, or otherwise)
including, without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11, United States Code) or any successor statute, arising
from the existence or performance of this Guaranty, and Guarantor waives to the
extent permitted by applicable law any right to enforce any remedy that Bank now
has or may hereafter have against Borrower, and waives any benefit of, and any
right to participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, notices of the existence, creation, or incurring
of new or additional Indebtedness to which this Guaranty applies or any other
Indebtedness of Borrower to Bank, and notices of any fact that might increase
Guarantor's risk.
9. Security. To secure all of Guarantor's obligations hereunder, Guarantor
assigns and grants to Bank a security interest in all moneys, securities, and
other property of Guarantor now or hereafter in the possession of Bank, all
deposit accounts of Guarantor maintained with Bank, and all proceeds thereof.
Upon default or breach of any of Guarantor's obligations to Bank, Bank may apply
any deposit account to reduce the Indebtedness, and may foreclose any collateral
as provided in the Uniform Commercial Code and in any security agreements
between Bank and Guarantor.
10. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. In addition to Guarantor's waiver
of any right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Bank, Guarantor agrees that,
if Bank so requests, Guarantor shall not demand, take, or receive from Borrower,
by setoff or in any other manner, payment of any other obligations of Borrower
to Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation of such
waiver or agreement, such payments shall be received by Guarantor as trustee for
Bank and shall be paid over to Bank on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that Guarantor may now or hereafter have on any property of Borrower is hereby
subordinated to any security interest, lien, or other encumbrance that Bank may
have on any such property.
11. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect
to future transactions, unless there is a continuing consideration as to
such transactions that Guarantor does not renounce. Such revocation shall
be effective upon actual receipt by Bank, at the address shown below or at
such other address as may have been provided to Guarantor by Bank, of
written notice of revocation. Revocation shall not affect any of
Guarantor's obligations or Bank's rights with respect to transactions
committed or entered into prior to Bank's receipt of such notice,
regardless of whether or not the Indebtedness related to such transactions,
before or after revocation, has been incurred, renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms,
including time for payment or increase or decrease of the rate of interest
thereon, and regardless of any other act or omission of Bank authorized
hereunder. Revocation by Guarantor shall not affect any obligations of any
other guarantor.
(b) In the event of the death of a Guarantor, the liability of the
estate of the deceased Guarantor shall continue in full force and effect as
to (i) the indebtedness existing at the date of death, and any renewals or
extensions thereof, and (ii) loans or advances made to or for the account
of Borrower after the date of the death of the deceased Guarantor pursuant
to a commitment made by Bank to Borrower prior to the date of such death.
As to all surviving Guarantors, this Guaranty shall continue in full force
and effect after the death of a Guarantor, not only as to the Indebtedness
existing at that time, but also as to the Indebtedness thereafter incurred
by Borrower to Bank.
(c) Guarantor acknowledges and agrees that this Guaranty may be
revoked only in accordance with the foregoing provisions of this paragraph
and shall not be revoked simply as a result of any change in name,
location, or composition or structure of Borrower, the dissolution of
Borrower, or the termination, increase, decrease, or other change of any
personnel or owners of Borrower.
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12. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
13. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such Indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately if requested by
Bank.
14. No Setoff or Deductions; Taxes.
(a) Guarantor represents and warrants that it is organized and
resident in the United States of America. All payments by Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including, without limitation, for any
and all present and future taxes. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the
payment from one of its U.S. resident offices to Bank so that no
withholding tax is imposed on the payment. Notwithstanding the foregoing,
if Guarantor makes a payment under this Guaranty to which withholding tax
applies or if any taxes (other than taxes on net income (i) imposed by the
country or any subdivision of the country in which Bank's principal office
or actual lending office is located and (ii) measured by the United States
taxable income Bank would have received if all payments under or in respect
of this Guaranty were exempt from taxes levied by Guarantor's country) are
at any time imposed on any payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph,
Guarantor shall pay all such taxes to the relevant authority in accordance
with applicable law such that Bank receives the sum it would have received
had no such deduction or withholding been made (or, if Guarantor cannot
legally comply with the foregoing, Guarantor shall pay to Bank such
additional amounts as will result in Bank receiving the sum it would have
received had no such deduction or withholding been made). Further,
Guarantor shall also pay to Bank, on demand, all additional amounts that
Bank specifies as necessary to preserve the after-tax yield Bank would have
received if such taxes had not been imposed.
(b) Guarantor shall promptly provide Bank with an original receipt or
certified copy issued by the relevant authority evidencing the payment of
any such amount required to be deducted or withheld.
15. information Relatinq to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
16. Borrower's Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners, members, managers,
or agents acting or purporting to act on its behalf, and any Indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder, subject to any limitations on Guarantor's liability set
forth herein.
17. Information Relating to Guarantor. Guarantor authorizes Bank to verify
or check any information given by Guarantor to Bank, check Guarantor's credit
references, verify employment, and obtain credit reports. Guarantor acknowledges
and agrees that the authorizations provided in this paragraph apply to any
individual general partner of Guarantor and to Guarantor's spouse and any such
general partner's spouse if Guarantor or such general partner is married and
lives in a community property state.
18. Chanqe of Status. Any Guarantor that is a business entity shaft not
enter into any consolidation, merger, or other combination unless Guarantor is
the surviving business entity. Further, Guarantor shall not change its legal
structure unless (a) Guarantor obtains the prior written consent of Bank and (b)
all Guarantor's obligations under this Guaranty are assumed by the new business
entity.
19. Remedies. if Guarantor fails to fulfill its duty to pay all
Indebtedness guaranteed hereunder, Bank shall have all of the remedies of a
creditor and, to the extent applicable, of a secured party, under all applicable
law. Without limiting the foregoing, Bank may, at its option and without notice
or demand:
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(a) declare any Indebtedness due and payable at once;
(b) take possession of any collateral pledged by Borrower or
Guarantor, wherever located, and sell, resell, assign, transfer, and
deliver all or any part of the collateral at any public or private sale or
otherwise dispose of any or all of the collateral in its then condition,
for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale. Further, Bank,
unless prohibited by law the provisions of which cannot be waived, may
purchase all or any part of the collateral to be sold, free from and
discharged of all trusts, claims, rights of redemption and equities of
Borrower or Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any collateral through any nationally recognized broker-dealer,
investment banker, or any other method common in the securities industry
shall be deemed a commercially reasonable sale under the Uniform Commercial
Code or any other equivalent statute or federal law, and expressly waives
notice thereof except as provided herein; and
(c) set off against any or all liabilities of Guarantor all money owed
by Bank or any of its agents or affiliates in any capacity to Guarantor,
whether or not due, and also set off against all other liabilities of
Guarantor to Bank all money owed by Bank in any capacity to Guarantor. If
exercised by Bank, Bank shall be deemed to have exercised such right of
setoff and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
20. Notices. All notices required under this Guaranty shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Guaranty, or sent by facsimile to
the fax numbers listed on the signature page, or to such other addresses as Bank
and Guarantor may specify from time to time in writing. Notices sent by (a)
first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight courier shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
21. Successors and Assiqns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's indorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to any assignee or purchaser, or any prospective
assignee or purchaser, of all or part of the Indebtedness any and all
information in Bank's possession concerning Guarantor, this Guaranty, and any
security for this Guaranty.
22. Amendments, Waivers, and Severability. No provision of this Guaranty
may be amended or waived except in writing. No failure by Bank to exercise, and
no delay in exercising, any of its rights, remedies, or powers shall operate as
a waiver thereof, and no single or partial exercise of any such right, remedy,
or power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Bank (a) in the enforcement of this Guaranty or (b) in the
preservation, protection, or enforcement of any rights of Bank in any case
commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute.
24. Governing Law and Jurisdiction. This Guaranty shall be governed by and
construed and enforced in accordance with federal law and the law of the State
of New Jersey. Jurisdiction and venue for any action or proceeding to enforce
this Guaranty shall be the forum appropriate for such action or proceeding
against Borrower, to which jurisdiction Guarantor irrevocably submits and to
which venue Guarantor waives to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith. It is provided,
however, that if Guarantor owns property in another state, notwithstanding that
the forum for enforcement action is elsewhere, Bank may commence a collection
proceeding in any state in which Guarantor owns property for the purpose of
enforcing provisional remedies against such property. Service of process by Bank
in connection with such action or proceeding shall be binding on Guarantor if
sent to Guarantor by registered or certified mail at its address specified
below.
25. Arbitration and Waiver of Jury Trial.
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(a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision
only, the term "parties" shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In
the event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted,
unless otherwise required by law, in any U. S. state where real or tangible
personal property collateral for this credit is located or if there is no
such collateral, in the state specified in the governing law section of
this agreement. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator(s) shall be issued
within 30 days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing
for up to an additional 60 days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed, judgment
entered and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or non-judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(h) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT
INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT
ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
26. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND
AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM
SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO
THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
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Executed this 1st day of August, 2005.
Trey Resource Inc
By: /s/ Xxxx Xxxxxx
-------------------
Xxxx Xxxxxx, CEO
Address for notices to Bank:
Business Credit Services-Documentation & Servicing
Premier Banking/Small Business Banking
West Seneca-Credit Services
Attn: Credit Service
Facsimile: 000 000-0000
Address for notices to Guarantor:
Trey Resource Inc
000 Xxxxxxx 00
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile:
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