EXHIBIT 6.13
INDIVIDUAL LIMITED GUARANTY
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(Xxxxxx X. Xxxx)
W I T N E S S E T H :
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WHEREAS, Xxxxxxxx.xxx, Inc., a Delaware corporation (the "Obligor"),
has agreed in Section 1 of a letter agreement dated as of the date hereof (the
"Agreement") to a schedule of payments (the "Scheduled Payments") it will make
to Touchscreen Media Group (the "Vendor") on account of services rendered by the
Vendor to the Obligor, as evidenced by invoices issued by the Vendor to the
Obligor (collectively, the "Invoices"); and
WHEREAS, as a condition to accepting the Agreement and the payments
thereunder, the Vendor has required that Xxxxxx X. Xxxx (the "Guarantor")
guarantee the full and prompt payment and performance of the Scheduled Payments
under the Agreement, subject to the terms and limitations hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of any and all
loans, advances, and extensions of credit now or hereafter made or extended by
Vendor to, for the account of or on behalf of Obligor pursuant to and under the
Agreement, Guarantor hereby unconditionally and absolutely guarantees to Vendor
the full and prompt payment and performance by Obligor of all obligations which
Obligor now or hereafter may have to Vendor to make the Scheduled Payments under
the Agreement (the "Obligations"), subject to the terms and limitations hereof.
This Guaranty is a continuing, unconditional and absolute guaranty of
payment and performance of the Scheduled Payments, subject to the terms and
limitations hereof. The obligations of the Guarantor hereunder are primary, with
no recourse necessary by Vendor against the Obligor or any collateral given to
secure the obligations guaranteed hereby prior to proceeding against the
Guarantor hereunder. The Guarantor hereby waives notice of and consent to the
creation of Obligations, to any amendments thereof, to any actions taken
thereunder, and to the execution by Obligor of the above-referenced Agreement
and of any other agreements, documents and instruments now or hereafter executed
by Obligor in connection with any Obligation. The Guarantor further waives the
following: notice of incurring of indebtedness and obligations by Obligor;
acceptance of this Guaranty by Vendor; presentment and demand for payment,
protest, notice of protest and notice of dishonor or non-payment on account of
the Agreement; any right to require suit against Obligor or any other party
before enforcing this Guaranty; and any right to have security applied before
enforcing this Guaranty.
Guarantor's obligations hereunder shall not be released, discharged,
terminated or impaired in any manner whatsoever, irrespective of the lack of any
notice to or consent of the Guarantor, by any of the following: (a) new
agreements or obligations of Obligor with or to Vendor; (b) amendments,
indulgences, extensions, modifications, renewals or waivers of default as to any
existing or future agreements or obligations of Obligor or third parties with or
to Vendor, or extensions of credit by Vendor to Obligor; (c) adjustments,
compromises or releases of any obligations of Obligor, Guarantor or other
parties, including any other guarantors, or exchanges, releases, dispositions or
sales of any security of Obligor, Guarantor or other parties, including any
other guarantors; (d) invalidity, irregularity, defect, or unenforceability, for
any reason, of any of the Obligations, or of any instrument or writing, or of
any security or other guaranty, or acts or omissions by Vendor or Obligor; (e)
failure to perfect any lien securing the obligations of Obligor, Guarantor or
other parties, including any other guarantors; (f) interruptions in the business
relations between Vendor and Obligor; (g) voluntary or involuntary bankruptcy
(including a reorganization in bankruptcy) of Obligor or entry of an order for
relief against or with respect to the Obligor under Title 11 of the United
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States Code; (h) composition, extension, moratoria or other forms of debtor
relief granted to Obligor pursuant to law presently in force or hereafter
enacted; (i) payment of any or all obligations and indebtedness of Obligor in
the event such payment is invalidated or avoided by a trustee, custodian or
receiver of Obligor; (j) the dissolution of Obligor; and (k) the reorganization,
merger or consolidation of Obligor into or with another entity, corporate or
otherwise, or the sale or disposition of all or substantially all of the capital
stock, business or assets of Obligor to any other person or party.
Notwithstanding anything to the contrary set forth herein or in any
other document in favor of Vendor:
i. the liability of Guarantor hereunder (for principal, interest
or any other charge, including, without limitation, attorneys'
fees or expenses) shall be limited to an amount equal to Five
Hundred Fifty Thousand Dollars ($550,000.00) in the aggregate;
and
ii. if, on any date, the only outstanding Invoices from the Vendor
to the Obligor are dated less than thirty (30) days prior to
such date, then on such date the Guarantor's liability
hereunder shall irrevocably terminate and the Guarantor shall
from and after such date have no liability hereunder, whether
then existing or thereafter incurred; and
iii. the liability of the Guarantor hereunder shall be subject to
the Vendor executing and delivering to the Obligor the
Agreement, in the form attached hereto as Exhibit A, by
December 3, 1999.
Any amount that becomes due hereunder and is not paid by Guarantor upon
demand shall accrue interest at the annual rate of ten percent (10%).
For purposes of any action or proceeding involving this Guaranty,
Guarantor hereby expressly submits to the jurisdiction of all federal and state
courts located in the State of Arizona and consents that any order, process,
notice of motion or other application to or by any of said courts or a judge
thereof may be served within or without such court's jurisdiction by registered
mail or by personal service.
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) (I) ANY RIGHT TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY OR THE AGREEMENTS AND AGREES
THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY AND
(II) ANY RIGHT TO CONTEST THE APPROPRIATENESS OF ANY ACTION BROUGHT IN ANY COURT
WITHIN THE JURISDICTION MENTIONED IN THE PRECEDING PARAGRAPH BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE AND FORUM NON CONVENIENS.
This Guaranty and all terms and conditions hereof shall be binding upon
Guarantor, his heirs and assigns, and shall inure to the benefit of Vendor and
its successors and assigns. Legal rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Arizona.
IN WITNESS WHEREOF, Guarantor executes this instrument under seal as of
this 2nd day of December, 1999.
WITNESS:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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EXHIBIT A
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XXXXXXXX.XXX, INC.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Touchscreen Media Group December 2, 1999
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: XXXXXX XXXXXX
Dear Xxxxxx:
The following is the agreement we believe Xxxxxxxx.xxx, Inc. (the "Company")
reached with Touchscreen Media Group ("Touchscreen") today.
6. The Company currently owes Touchscreen $466,000 for services rendered. The
Company agrees to make the following payments (the "Scheduled Payments") to
Touchscreen for invoiced services: $35,000 by the end of the business day
on December 31, 1999, $85,000 by the end of the business day on January 14,
2000, and $35,000 per week on each Friday thereafter until such date as all
outstanding invoices from Touchscreen to the Company are less than thirty
days old.
7. Xxxxxx X. Xxxx, Chairman of the Company, will personally guarantee the
Scheduled Payments (up to $550,000), subject however to the terms and
conditions set forth in the Individual Limited Guaranty Agreement dated the
date hereof (the "Guaranty"). Xx. Xxxx'x obligations under the Guaranty are
subject to your execution and delivery of this Agreement to the Company.
8. In consideration of Xx. Xxxx'x Guaranty, Touchscreen agrees that it will
continue to provide services to the Company in the amount of approximately
$10,000-$12,000 per week. Touchscreen will not be obligated to provide
further services to the Company in the event that the total outstanding
invoices owed by the Company to Touchscreen exceed $550,000 or Xx. Xxxx
defaults under the Guaranty.
9. The Company agrees to pay to Touchscreen 25% of the proceeds of any
offering of securities by the Company upon receipt thereof until such time
as the Company's account with Touchscreen is current (outstanding invoices
less than thirty days old). Any payments made by the Company to Touchscreen
pursuant to this Section 4 shall be applied to reduce the Company's
obligation to make the Scheduled Payments.
10. This Agreement supersedes our prior agreements with respect to the subject
matter hereof.
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If the foregoing correctly reflects our agreement, please execute this Agreement
where indicated below and return a copy to the Company at 000-000-0000.
Very truly yours,
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chairman
READ AND AGREED TO
TOUCHSCREEN MEDIA GROUP
By: /s/ Xxxxxx XxXxxx
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Xxxxxx XxXxxx, a duly authorized
officer
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