CORPORATE GUARANTY
This Guaranty dated as of May 1, 1997, is made by the undersigned
("Guarantor"), in favor of FINOVA CAPITAL CORPORATION, a Delaware corporation,
having an office at 00 Xxxxx Xxxxx 00 Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000
("Lender").
W I T N E S S E T H :
WHEREAS, contemporaneously herewith, Xxxx Technology Group, Ltd., a
Delaware corporation ("Debtor"), and Lender have entered into a certain Loan and
Security Agreement of even date herewith (as the same may from time to time be
amended, modified or supplemented, referred to as the "Loan Agreement") and the
other Loan Documents (all capitalized terms used in this Guaranty which are not
defined herein, but which are defined in the Loan Agreement, shall have the
respective meanings ascribed thereto in the Loan Agreement), pursuant to which
Lender has agreed to make a loan to Debtor in the principal sum of Eight Hundred
Seventy-Three Thousand Six Hundred Nine and 79/100 Dollars ($873,609.79) (the
"Loan");
WHEREAS, the Loan is or will be evidenced by a certain promissory note
of Debtor (as the same may from time to time be amended, modified or
supplemented, referred to as the "Note") in the principal sum of the Loan;
WHEREAS, Guarantor is a subsidiary of Debtor and will derive
direct and indirect benefits from the Loan; and
WHEREAS, in order to induce Lender to execute the Loan Agreement and
the other Loan Documents and to make the Loan and to further induce Lender to
make future loans and financial accommodations to Debtor, in Lender's sole and
absolute discretion, Guarantor has agreed to execute and deliver this Guaranty;
NOW, THEREFORE, Guarantor agrees as follows:
1. GUARANTY.
(a) Guarantor absolutely and unconditionally guarantees the prompt
payment and satisfaction, when due, of all indebtedness, liabilities and
Obligations of Debtor to Lender, of every kind and nature, however arising
(including, without limitation, under indemnities), and whether now existing or
hereafter arising, including, without limitation, the indebtedness, liabilities
and Obligations of Debtor to Lender under, in connection with or arising out of
the Loan, the Loan Agreement, the Note and the
other Loan Documents (hereinafter collectively called the "Indebtedness").
(b) Guarantor absolutely and unconditionally guarantees the prompt,
full and faithful performance and discharge by Debtor of each and every term,
condition, agreement, representation, warranty and provision on the part of
Debtor contained in the Loan Agreement, the Note and the other Loan Documents or
in any modification, amendment, supplement or substitution thereof or in any
document or instrument evidencing a financial accommodation between Lender and
Debtor.
(c) Guarantor shall, on demand, reimburse Lender for all expenses,
collection charges, court costs and attorneys' fees incurred by Lender in
endeavoring to collect or enforce any of Lender's rights and remedies against
Debtor and/or Guarantor or any other person or concern liable thereto.
(d) Guarantor shall absolutely and unconditionally guarantee to pay all
of the foregoing amounts and perform all of the foregoing terms, covenants and
conditions, regardless of any other agreements or circumstances of any nature
whatsoever which might otherwise constitute a defense to this Guaranty and
notwithstanding that any part or all of the Loan Documents or any financial
accommodation shall be void or voidable as against Debtor or any of Debtor's
creditors, including a trustee in bankruptcy of Debtor, by reason of any fact or
circumstances including, without limitation, failure by any person to file any
document or to take any other action to make any of the Loan Documents or any
other financial accommodation enforceable in accordance with their respective
terms. Guarantor also agrees that Guarantor's obligations hereunder shall not be
relieved in the event Lender fails to protect or otherwise impairs any
collateral, whether as a result of Lender's negligence or otherwise.
2. WAIVERS BY GUARANTOR.
(a) Guarantor waives notice of acceptance hereof and of all notices and
demands of any kind to which Guarantor may be entitled including, without
limitation, all demands of payment and notice of nonpayment, protest and
dishonor to Guarantor, or Debtor, or the makers or endorsers of any notes or
other instruments for which Guarantor is or may be liable hereunder. Guarantor
further waives notice of and hereby consents to any agreement or arrangement for
subordination, composition, arrangement, discharge or release of the whole or
any part of Debtor's obligations under the Loan Agreement or any other Loan
Documents or financial accommodation, or release of other guarantors, or for
compromise of any sums due in any way whatsoever; and the same shall in no way
impair Guarantor's liability hereunder.
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(b) Guarantor waives any right to require Lender to: (i) proceed
against Debtor; (ii) proceed against or exhaust any security held by Lender of
Debtor or otherwise; or (iii) pursue any other remedy which Lender may have,
including against any other guarantor of Debtor's obligations to Lender.
(c) Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which
Guarantor may now or hereafter have against Debtor or any person directly or
contingently liable for the obligations guaranteed hereunder, or against or with
respect to Debtor's property (including, without limitation, property
collateralizing the obligations guaranteed hereunder), arising from the
existence or performance of this guaranty. If any amount is paid to Guarantor on
account of any subrogation or other rights waived hereunder at any time when all
of the Indebtedness or Obligations have not been paid in full, such amount shall
be held in trust for the benefit of Lender, shall be segregated from the other
funds of Guarantor and shall forthwith be paid over to Lender to be applied in
whole or in part by Lender against the outstanding Obligations, whether matured
or unmatured, and all such other sums guaranteed hereunder.
(d) GUARANTOR WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED HEREON. GUARANTOR ALSO WAIVES THE BENEFIT OF ANY
STATUTE OF LIMITATIONS AFFECTING GUARANTOR'S LIABILITY HEREUNDER OR THE
ENFORCEMENT THEREOF.
3. GUARANTOR'S PROPERTY AS SECURITY FOR GUARANTY. All sums at any time to
Guarantor's credit and any of Guarantor's property at any time in Lender's
possession shall be deemed held by Lender as security for any and all of
Guarantor's obligations to Lender hereunder.
4. SUBORDINATION. Any and all present and future indebtedness and
obligations of Debtor to Guarantor are hereby postponed in favor of and
subordinated to the full payment and performance of all present and future
indebtedness and obligations of Debtor to Lender.
5. PRIMARY NATURE OF GUARANTY. The liability of Guarantor is present,
absolute, unconditional, continuing, primary, direct and independent of the
obligations of Debtor. Nothing shall discharge or satisfy Guarantor's liability
hereunder except the full performance and payment of all of Debtor's Obligations
to Lender, with interest. Guarantor shall have no right of subrogation,
reimbursement or indemnity whatsoever and no right of recourse to or with
respect to any assets or property of Debtor. This Guaranty will continue to be
effective until Debtor no longer has any Obligations to Lender and will be
reinstated, if at any time after a payment is made to Lender, or any successor
or assignee of Lender, such payment is rescinded or
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must be returned upon the insolvency, bankruptcy or reorganization of Debtor,
Guarantor or otherwise, as if such payment had never been made.
6. EVENTS OF DEFAULT. If Guarantor or Debtor should at any time become insolvent
or make a general assignment for the benefit of creditors, or if a proceeding
shall be commenced by, against or in respect of Guarantor or Debtor under the
Federal Bankruptcy Code or any state insolvency law, or if any individual
Guarantor dies, any and all of Guarantor's obligations under this Guaranty
shall, at Lender's option, forthwith become due and payable without notice.
7. CONTINUING NATURE OF GUARANTY. This is a continuing guaranty. This instrument
shall continue in full force and effect until terminated by the actual receipt
by Lender, of written notice of termination from Guarantor. Such termination
shall be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception prior
to such termination shall not be affected.
8. COVENANTS OF GUARANTOR. Guarantor represents that all financial and other
information furnished to Lender was, at the time of delivery, true and correct.
Guarantor agrees to provide Lender with annual financial statements within
ninety (90) days after the end of each calendar year and copies of all tax
returns within thirty (30) days after the same are delivered to the Internal
Revenue Service (each satisfactory in form and prepared by accountants
satisfactory to Lender) and such other financial, credit or other information as
Lender reasonably requests until all Obligations of Debtor to Lender are paid in
full.
9. NO WAIVER BY LENDER. No failure, omission or delay on the part of Lender in
exercising any rights hereunder or in taking any action to collect or enforce
payment or performance of the Loan Documents or any financial accommodations,
either against Debtor or any other person liable therefor, shall operate as a
waiver of any such right or shall, in any manner, prejudice the rights of Lender
against Guarantor.
10. CUMULATIVE REMEDIES. All of Lender's rights, remedies and recourse under the
Loan Documents or any financial accommodations or this Guaranty, are separate
and cumulative and may be pursued separately, successively or concurrently, are
non-exclusive and the exercise of any one or more of them, shall in no way limit
or prejudice any other legal or equitable right, remedy or recourse to which
Lender may be entitled.
11. MODIFICATIONS. No provision hereof shall be modified or limited, except by a
written agreement expressly referring hereto
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and to the provision so modified or limited, and signed by Guarantor and Lender.
12. MERGER. This writing is intended by the parties as a final expression of
this agreement of guaranty and is intended also as a complete and exclusive
statement of the terms thereof. No course of prior dealings between the parties,
no usage of the trade, and no parol or extrinsic evidence of any nature shall be
used or be relevant to supplement or explain or modify any term used in this
agreement of guaranty.
13. SEVERABILITY. In case any one or more of the provisions contained in this
Guaranty shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
14. NOTICES. Any notice required hereunder shall be in writing, and shall be
deemed to have been validly served if delivered by overnight courier, such as
Federal Express, with proper postage prepaid, or by hand and addressed to the
party to be notified at the address of such party set forth in this Guaranty or
to such other address as each party may designate for itself by like notice.
Such notice shall be deemed received, if sent by overnight courier, the next
day, and if sent by hand, upon delivery.
15. GOVERNING LAW. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN DELIVERED AT AND
SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA.
16. VENUE. GUARANTOR IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST GUARANTOR UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
GUARANTY OR THE OTHER LOAN DOCUMENTS, MAY BE BROUGHT IN ANY COURT OF THE STATE
OF ARIZONA LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA. GUARANTOR, BY THE EXECUTION AND DELIVERY OF THIS
GUARANTY, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING, AND FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER
PROCESS RELATING TO SUCH ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND
OR BY MAIL IN THE MANNER PROVIDED FOR IN THIS GUARANTY. GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR
PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS OR ANY SIMILAR BASIS. GUARANTOR SHALL NOT BE ENTITLED IN
ANY SUCH ACTION OR PROCEEDING TO ASSERT ANY DEFENSE GIVEN OR ALLOWED UNDER THE
LAWS OF ANY STATE OTHER THAN THE STATE OF
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ARIZONA UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY THE LAWS OF THE STATE OF
ARIZONA. NOTHING IN THIS GUARANTY SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY
EXTENT THE RIGHT OF LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST GUARANTOR IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW.
17. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit of Lender,
its successors and assigns and shall be binding on Guarantor and Guarantor's
heirs, administrators, estate, executors, successors and assigns; provided,
however, that Guarantor may not assign or delegate any of its obligations
contained in this Guaranty. Guarantor hereby consents to Lender's sale,
assignment, transfer or other disposition at any time or times hereafter, of
this Guaranty, or any portion hereof, including, without limitation, Lender's
rights, title, interests, remedies and/or duties hereunder.
IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this Guaranty on
the date first above set forth.
WITNESS: BLUESTREAK DIGITAL, INC.
Xxxxx X. Xxxxxxxxx By: Xxxxxx Xxxx
Title: Executive Vice President
Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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ACKNOWLEDGMENT
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this 1st day of May, 1997, before me personally came Xxxxxx Xxxx, to
me known, who being by me duly sworn, did depose and say that he resides at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, that he is the Executive Vice
President of Bluestreak Digital, Inc., the corporation described in and which
executed the foregoing instrument, and that he signed his name thereto by order
of the board of directors of said corporation.
Xxxx Xxxxx
Notary Public
