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EXHIBIT 10.25
CORPORATE GUARANTY AGREEMENT
(Unsecured)
This guaranty agreement (this "Agreement") is made by Guarantor identified on
the last page of this Agreement ("Guarantor").
Xxxxx X. Xxxxxxxxx and Associates, Inc., whose address is 0000 XxXxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Software Consulting Services America, Inc.,
whose address is 000 Xxxxx Xxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxxxx 00000,
Software Innovators, Inc., whose address is 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx Xxxx, Xxxxxxxx 00000, and Integrated Controls, Inc., whose address
is 000 Xxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 (hereafter individually
and/or collectively "Companies"), have applied to Metro Factors, Inc. ("Metro")
for factoring services, and as a condition of providing such services to
Companies, Metro requires the corporate guaranty of Guarantor.
Guarantor makes this Agreement for the purpose of providing additional security
to Metro and as an inducement to Metro to provide such services to Companies.
Therefore, in consideration of providing such services to Companies Guarantor
unconditionally agrees with Metro as follows:
1. The assumption by Guarantor of its obligations hereunder will result
in a direct financial benefit to Guarantor.
2. Guarantor hereby unconditionally guarantees to Metro the full and
prompt performance of all obligations of Companies to Metro including but not
limited to the obligations of Companies under the Factoring Agreement and
Security Agreement between Metro and Companies. The obligations of Guarantor
shall be absolute and unconditional and shall remain in full force and effect so
long as Companies are receiving services from Metro, and upon the termination of
the Factoring Agreement and Security Agreement with Metro the guaranty shall
remain in full force and effect until all obligations of Companies to Metro are
discharged and satisfied in full.
The obligations of Guarantor shall not be affected by the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets of Companies or of their insolvency,
receivership, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors, or similar proceedings
affecting Companies or any other guarantor of their obligations to Metro, nor by
any merger, consolidation, or other reorganization of any kind involving
Companies.
The liability of Guarantor hereunder is an absolute, direct, immediate, and
unconditional guarantee of payment and not of collectability. Guarantor agrees
on request to supply Metro with true and correct financial statements in such
form as Metro may reasonably prescribe.
3. No set-off, counterclaim, reduction or diminution of any obligation
or any defense of any kind or nature which Companies may have against Metro
shall be available hereunder to Guarantor.
4. Guarantor waives notice of demand of any kind to Guarantor
personally and agrees that notice to Companies is notice to Guarantor.
5. Guarantor authorizes Metro, without notice or demand, and without
affecting Guarantor's liability hereunder, from time to time, to: (i) renew,
compromise, extend, accelerate, or otherwise change the terms of the obligations
of Companies to Metro or any part thereof; (ii) take and hold security for the
payment of this Agreement of the obligations of Companies to Metro and exchange,
enforce, waive, and release any such security; (iii) apply such security and
direct the order or manner of sale thereof as Metro in its discretion may
determine; and (iv) release or substitute any one or more of any guarantor of
any of Companies' obligations to Metro. Metro may, without notice or consent,
assign this Agreement in whole or in part.
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6. Any indebtedness of Companies now or hereafter held by Guarantor is
hereby subordinated to the obligations of Companies to Metro, and such
indebtedness of Companies to Guarantor, if Metro so requests, shall be
collected, enforced and received by Guarantor as trustee for Metro and be paid
over to Metro on account of the obligations of Companies to Metro, but without
reducing or affecting in any manner the liability of Guarantor under the
provisions hereof. Guarantor shall immediately inform Metro on request of any
indebtedness of Companies held by Guarantor.
7. Guarantor waives any claim, right or remedy which Guarantor may now
have or hereafter acquire against Companies or any person primarily or
contingently liable for the guaranteed obligations or that arise from the
existence or performance of Guarantor's obligations hereunder, including,
without limitation, any claim, remedy or right or subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Metro against Companies or any collateral security Metro now has or
hereafter acquires, regardless of how such claim, remedy or right arises.
8. All disputes arising out of or in connection with this Agreement or
any transaction hereunder shall be finally settled under the Commercial
Arbitration Rules of the American Arbitration Association then in effect by an
arbitrator chosen from such association's blind pool of arbitrators with
significant knowledge and experience in the field of factoring of accounts
receivable who shall be appointed in accordance with such Rules. The
arbitrator's award shall be final and binding. Judgment upon the award rendered
may be entered in any court having jurisdiction over the party against which the
award is rendered. The parties expressly consent to the jurisdiction of the
federal and state courts situated in the State of Texas for the purpose of
enforcing any arbitration award rendered pursuant to this Paragraph 8 and the
parties further agree that venue shall be Dallas County, Texas. The arbitration
shall take place in Dallas, Texas, or such other place as the parties may agree.
The arbitration shall include (i) a provision that the prevailing party in such
arbitration shall recover its costs of the arbitration and reasonable attorneys'
fees from the other party or parties, and (ii) the amount of such fees and
costs. Guarantor hereby authorizes service of any legal process or notice upon
the Secretary of State of Texas as Guarantor's agent.
9. Upon happening of a default in the obligation of Companies to Metro,
then Metro shall have the right to proceed first and directly against Guarantor
under this Agreement without proceeding against or exhausting any other remedies
which it may have against Companies or any other guarantor of Companies'
obligations to Metro and without realizing upon any security held by Metro.
10. No remedy herein conferred upon Metro is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or omission
by Metro to exercise any right accruing upon any default or failure of
performance by Companies to Metro shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed to be expedient by Metro. This Agreement shall be binding upon
Guarantor's successors and assigns.
DATED and effective: __________________________________, 1999.
GUARANTOR:
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC.
By:
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Xxxxxxx X. Xxxxx,
Authorized Agent/Chief Accounting Officer
WITNESSED BY:
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