EXHIBIT 10.23
GUARANTY
Date: September 3, 2004
The Xxxxxx Family Trust
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Xxxxxxxxx Partners, L. P.
000 Xxxx Xxxxxx, Xxx 0X
Xxx Xxxx, XX 00000-0000
Xxx Xxxxxxx
Xxxxxxx Executive Officers
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxx Xxx, XX 00000-0000
Xxxxxx Xxxxxx
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Re: GigaBeam Corporation (the "Company")
Ladies and Gentlemen:
Reference is made to that certain Note Purchase Agreement dated
September 3, 2004 (herein the "Note Purchase Agreement") between you and the
Company. The undersigned ("Guarantor") hereby unconditionally guarantees and
agrees to be liable for the full and indefeasible payment and performance when
due of all now existing and future indebtedness, obligations or liabilities of
the Company to you, whether direct or indirect, absolute or contingent, secured
or unsecured, arising under the Note Purchase Agreement and the 10% Senior Notes
due February 28, 2005 ("Notes" - Exhibit C). Further, the Guarantor agrees to
pay to you on demand the amount of all expenses (including reasonable attorney's
fees and expenses) incurred by you in collecting or attempting to collect any of
the obligations of the Company to you, whether from the Company or from any
other obligor, or in realizing upon any collateral, even if such amount cannot
be collected from the Company. (All of the aforementioned obligations,
liabilities, expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of Obligations
guaranteed hereby, which payment is thereafter set aside or required to be
repaid by you in whole or in part, then, to the extent of any sum not finally
retained by you (regardless of whether such sum is recovered from you by the
Company, its trustee, or any other party acting for, on behalf of or through the
Company or its representative) the Guarantor's obligation to you under this
Guaranty, as amended, modified or supplemented, shall remain in full force and
effect (or be reinstated) until the Guarantor has made payment to you therefor,
which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or
advances to the Company or otherwise to extend credit or financial
accommodations to the Company or to enter into or continue a financing
arrangement with the Company and is executed in consideration of your doing or
having done any of the foregoing. The Guarantor agrees that any of the foregoing
shall be done or extended by you in your sole discretion, and shall be deemed to
have been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
The Guarantor's obligations hereunder shall not arise unless you have
made presentment of the Note upon the Company and made demand for full
satisfaction of all Obligations due and same has not been fully satisfied by the
end of the fifth business day thereafter.
This Guaranty is absolute, unconditional and continuing, regardless of
the validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. The
liability of the Guarantor under this Guaranty shall be unaffected by the
dissolution of the Guarantor. Payment by the Guarantor shall be made to you at
your address stated above from time to time on demand as Obligations become due,
and one or more successive or concurrent actions may be brought hereon against
the Guarantor either in the same action or in separate actions. In the event any
claim or action, or action on any judgment, based on this Guaranty is made or
brought against the Guarantor, the Guarantor agrees not to assert against you
any set-off or counterclaim which the Company may have, and, further, the
Guarantor agrees not to deduct, set-off, or seek to counterclaim for or recoup,
any amounts which are or may be owed by you to the Guarantor. Furthermore, in
any litigation based on the Guaranty in which you and the Guarantor shall be
adverse parties, the Guarantor hereby waives the right to interpose any defense
based upon any statute of limitations or any claim of laches and waive the
performance of each and every condition precedent to which the Guarantor might
otherwise be entitled by law.
All sums at any time to the credit of the Guarantor and any property of
the Guarantor on which you at any time have a lien or security interest, or of
which you at any time have possession, shall secure payment and performance of
all Obligations and any and all other obligations of the Guarantor to you
however arising. The Guarantor shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor.
Upon the occurrence of any of the following events:
1. any Event of Default under the Notes;
2. failure of the Guarantor to observe or perform any
agreement, warranty or covenant contained herein; or
3. (a) dissolution or cessation of the Guarantor's business;
or
(b) commencement by the Guarantor of any bankruptcy,
insolvency, arrangement, reorganization, receivership
or similar proceedings under federal or state law
(herein collectively "Insolvency Proceeding"); or
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(c) commencement of any Insolvency Proceeding against
the Guarantor,
then, in the case of event (1) above the liability of the Guarantor for the
entire Obligations shall mature, and in the case of events (2) and (3) (a)
through (c) above the liability of the Guarantor with respect to which such
event relates for the entire Obligations shall mature even if the liability of
the Company therefor does not.
Your books and records showing the account between you and the
Company shall be admissible in evidence in any action or proceeding as prima
facie proof of the items therein set forth.
This Guaranty embodies the whole agreement of the parties and may not
be modified except in writing, and no course of dealing between you and the
Guarantor shall be effective to change or modify this Guaranty. Your failure to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by the Guarantor
of the terms and provisions of this Guaranty shall constitute a waiver thereof
or a waiver of any obligations to be performed by the Guarantor hereunder.
This Guaranty may be assigned by you and shall be for your benefit and
for the benefit of any of your assignees or transferees, and shall cover any
Obligations owed to you at the time of assignment or transfer as well as any and
all future Obligations, loans, advances or extensions of credit made to the
Company by, or otherwise owed by the Company to, such assignee or transferee.
This Guaranty is executed and given in addition to, and not in
substitution, reduction, replacement, or satisfaction of, any other endorsements
or guarantees of the Obligations, now existing or hereafter executed by the
Guarantor or others in your favor.
When used in this Guaranty, all pronouns shall, wherever applicable, be
deemed to include the singular and plural as well as the masculine, feminine,
and neuter genders. This Guaranty shall inure to the benefit of you and any of
you, jointly and severally, your successors and assigns and any parent,
subsidiary or affiliate of yours; shall be binding upon the Guarantor and upon
the heirs, executors, administrators, successors and assigns of the Guarantor;
and shall pertain to the Company and its successors and assigns.
This Guaranty shall be governed by and construed and enforced in
accordance with the internal law of the State of New York without giving effect
to principles of conflicts of law.
THE GUARANTOR, IN ANY LITIGATION IN WHICH YOU OR ANY OF YOU SHALL BE AN
ADVERSE PARTY, WAIVES TRIAL BY JURY, WAIVES THE RIGHT TO CLAIM THAT A FORUM
SPECIFIED HEREIN IS AN INCONVENIENT FORUM AND WAIVES THE RIGHT TO INTERPOSE ANY
SETOFF, DEDUCTION OR COUNTERCLAIM OF ANY NATURE OR DESCRIPTION AND CONSENTS TO
THE JURISDICTION OF THE COURTS (CITY, STATE AND FEDERAL) LOCATED IN NEW YORK
CITY AND TO SERVICE OF PROCESS BY REGISTERED MAIL ADDRESSED TO THE GUARANTOR AT
THE ADDRESS SET FORTH BELOW OR SUCH OTHER ADDRESS AS THE GUARANTOR SHALL NOTIFY
YOU IN WRITING IS TO BE USED FOR SUCH PURPOSE.
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If any of the provisions of this Guaranty shall be or become illegal or
unenforceable under any law, the other provisions shall remain in full force and
effect.
[The next page is the signature page.]
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IN WITNESS WHEREOF the Guarantor has executed and delivered this
Guaranty effective as of the date above set forth.
AMERISTOCK CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Director & Portfolio Manager
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