Exhibit 10.33
LIMITED GUARANTY AGREEMENT
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This LIMITED GUARANTY AGREEMENT (this "Guaranty") is made this 14th day of
March, 2000, by XXXXXXX X. X'XXXXXX, an individual resident of the State of
Michigan ("Guarantor"), in favor of PNC BANK, NATIONAL ASSOCIATION, a national
association, in its capacity as collateral and administrative agent (together
with its successors in such capacity, "Agent"), for each of the lenders (the
"Lenders;" collectively with Agent, the "Guaranteed Parties") now or hereafter
parties to the Credit Agreement (as defined below).
Recitals
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Agent and Lenders are parties with ELTRAX SYSTEMS, INC., a Minnesota
corporation, ELTRAX TECHNOLOGY SERVICES GROUP, INC., a Georgia corporation,
ELTRAX ASP GROUP, LLC, a Georgia limited liability company, SQUIRREL SYSTEMS,
INC., a Georgia corporation, SENERCOMM, INC., a Florida corporation, ELTRAX
CUSTOMER CARE GROUP, INC., a Georgia corporation, ELTRAX INTERNATIONAL, INC., a
Pennsylvania corporation, and ELTRAX HOSPITALITY GROUP, INC., a Georgia
corporation (each a "Debtor" and collectively "Debtors"), to a Revolving Credit
and Security Agreement dated the date hereof (as at any time amended, the
"Credit Agreement"), pursuant to which Lenders have agreed to make loans and
other extensions of credit to or for the benefit of Debtors on the terms and
subject to all of the conditions set forth in the Credit Agreement. Capitalized
terms used in this Guaranty, unless otherwise defined herein, shall have the
meanings ascribed to them in the Credit Agreement.
A condition to Lenders' extension of any credit to Debtors under the Credit
Agreement is the execution and delivery of this Guaranty by Guarantor. To
induce Lenders to extend credit to Debtors under the Credit Agreement, Guarantor
has agreed to execute and deliver and be bound by the terms of this Guaranty.
Statement of Agreement
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FOR TEN DOLLARS ($10.00) in hand paid and in order to induce the Guaranteed
Parties to make loans or extend credit from time to time, to Debtors in
accordance with the terms of the Credit Agreement (as hereinafter defined), and
for other good and valuable consideration, Guarantor hereby unconditionally and
absolutely guarantees to each of the Guaranteed Parties and their respective
successors and assigns the due and punctual payment, performance and discharge
(whether upon stated maturity, demand, acceleration or otherwise in accordance
with the terms thereof) of all such loans and extensions of credit from any
Guaranteed Party to Debtors under the Credit Agreement and all other debts,
liabilities and obligations of Debtors to or held by any Guaranteed Party
(including any portion thereof nominally held by a Guaranteed Party on behalf of
others who have participations or interests therein granted or created by a
Guaranteed Party), whether direct or indirect, absolute or contingent, secured
or unsecured, due or to become due, liquidated or unliquidated, primary or
secondary, joint or several, now existing or hereafter arising, whether created
directly to or acquired by assignment or otherwise by any Guaranteed Party, and
whether any Debtor may be liable individually or jointly with others, and
regardless of whether recovery upon any of such loans or extensions of credit or
other debts, liabilities and obligations becomes barred by any statute of
limitations, is void or voidable under any law relating to fraudulent
obligations or otherwise, or is or becomes invalid or unenforceable for any
other reason (all such debts, liabilities and obligations being hereinafter
referred to collectively as the "Indebtedness"). Without limiting the generality
of the foregoing, the term "Indebtedness" as used herein shall include all
debts, liabilities and obligations incurred by any Debtor to any Guaranteed
Party, including reasonable attorneys' fees, in any bankruptcy case of any
Debtor and any interest, fees or
other charges accrued in any such bankruptcy whether or not recoverable from
such Debtor or such Debtor's estate under 11 U.S.C. (S) 506. IN NO EVENT,
HOWEVER, SHALL GUARANTOR'S LIABILITY UNDER THIS GUARANTY EXCEED THE SUM OF (A)
$2,800,000, PLUS (B) INTEREST ON THE PRINCIPAL AMOUNT DUE HEREUNDER FROM AND
AFTER THE DATE ON WHICH PAYMENT OF SUCH AMOUNT IS DUE AT THE RATE OF INTEREST
APPLICABLE FROM TIME TO TIME UNDER THE CREDIT AGREEMENT, PLUS (C) THE COSTS AND
ATTORNEYS' FEES INCURRED BY ANY GUARANTEED PARTY IN ENFORCING THE TERMS HEREOF
AND IN COLLECTING THE INDEBTEDNESS OF GUARANTOR HEREUNDER.
GUARANTOR HEREBY WAIVES: notice of acceptance hereof; notice of the
extension of credit from time to time given by any Guaranteed Party to any
Debtor and the creation, existence or acquisition of any Indebtedness; notice of
the amount of Indebtedness of Debtors to the Guaranteed Parties from time to
time, subject, however, to Guarantor's right to make inquiry of Agent to
ascertain the amount of Indebtedness at any reasonable time; notice of any
adverse change in any Debtor's financial condition or of any other fact which
might increase Guarantor's risk; notice of presentment for payment, demand,
protest and notice thereof as to any instrument; notice of default or
acceleration and all other notices and demands to which Guarantor might
otherwise be entitled; any right Guarantor may have, by statute or otherwise, to
require any Guaranteed Party to institute suit against any Debtor after notice
or demand from Guarantor or to seek recourse first against any Debtor or others,
or to realize upon any security for the Indebtedness, as a condition to
enforcing Guarantor's liability and obligations hereunder; any defense that any
Debtor may at any time assert based upon the statute of limitations, the statute
of frauds, failure of consideration, fraud, bankruptcy, lack of legal capacity,
usury, or accord and satisfaction; any defense that other indemnity, guaranty or
security was to be obtained; any defense or claim that any Person purporting to
bind any Debtor to the payment of Indebtedness did not have actual or apparent
authority to do so; and any right to contest the commercial reasonableness of
the disposition of any or all collateral (to the extent available under
applicable law). Guarantor further waives any right Guarantor may have, by
statute or otherwise, to any right to appraisement, valuation, stay of
execution, or notice of election to declare due the amount of any indebtedness
of Debtors with regard to any Guaranteed Party's enforcement of any security
interest, lien, mortgage or other interest the Guaranteed Parties may hold in
any real or personal property of any Debtor. Guarantor further waives and
renounces all homestead and exemption rights provided for by the Constitution
and the laws of the United States and of any state thereof.
If an Event of Default under (and as defined in) the Credit Agreement shall
occur or if any Debtor should dissolve or become insolvent (within the meaning
of the Georgia Uniform Commercial Code), or if a petition for an order for
relief with respect to any Debtor should be filed by or against any Debtor under
any chapter of the Bankruptcy Code, or if Guarantor shall die, or if a receiver,
trustee or conservator should be appointed for any Debtor or Guarantor or any of
such Debtor's or Guarantor's property, or if any Debtor should default in the
observance or performance of any covenant or agreement with any Guaranteed Party
and such default shall not be cured within any cure period mutually agreed upon
in writing by such Debtor and such Guaranteed Party, or if Debtors shall fail to
pay any of the Indebtedness on the due date thereof (whether due on demand, at
stated maturity, upon acceleration or otherwise), or if Guarantor should revoke
or attempt to revoke this Guaranty or should dispute Guarantor's liability
hereunder, then, in any such event and whether or not any of the Indebtedness is
then due and payable or the maturity thereof has been accelerated or demand for
payment thereof from Debtors has been made, Agent may without notice to
Guarantor (and shall at the direction of the Required Lenders) make the
Indebtedness immediately due and payable hereunder as to Guarantor and Agent
shall be entitled to enforce the obligations of Guarantor hereunder. Guarantor
agrees to pay all expenses incurred by any Guaranteed Party in connection with
enforcement of any Guaranteed Party's rights under the Guaranty, including court
costs, collection charges and reasonable attorneys' fees.
Each Guaranteed Party shall have a lien upon or right of set-off to any and
all credits and any and all other property of Guarantor, now or at any time
whatsoever with or in the possession of such Guaranteed
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Party or anyone holding for such Guaranteed Party as security for any and all
obligations of Guarantor to such Guaranteed Party, no matter how or when arising
and whether under this or any other instrument or agreement or otherwise.
Guarantor consents and agrees that, without notice to or by Guarantor and
without affecting or impairing the liability or obligations of Guarantor
hereunder, the Guaranteed Parties may: compromise or settle, extend the period
of duration or the time for the payment, discharge or performance of any of the
Indebtedness or increase the amount of the Indebtedness; refuse to enforce, or
release any Persons liable for the payment of any of the Indebtedness; increase,
decrease or otherwise alter the rate of interest payable with respect to the
principal amount of any of the Indebtedness or grant other indulgences to any
Debtor in respect thereof; amend or modify in any manner, or terminate or
release, any documents or agreements evidencing, securing or otherwise relating
to the Indebtedness (other than this Guaranty); release, surrender, exchange,
modify or impair any and all collateral, deposits or other property at any time
securing (directly or indirectly) any of the Indebtedness or on which the
Guaranteed Parties at any time may have a lien; extend the time of payment of
any collateral consisting of accounts, notes, chattel paper or other rights to
the payment of money; refuse to enforce its rights or make any compromise or
settlement or agreement therefor, in respect of any and all of such collateral,
deposits and property, or with any party liable for the Indebtedness, or with
any other Person, whatsoever; or release or substitute any one or more of the
endorsers or guarantors of the Indebtedness, whether parties to this instrument
or not.
Guarantor consents and agrees that the Guaranteed Parties shall be under no
obligation to marshal any assets in favor of Guarantor or against or in payment
of any or all of the Indebtedness. Guarantor agrees to pay all expenses
incurred by the Guaranteed Parties in connection with enforcement of the
Guaranteed Parties' rights under this Guaranty, including court costs,
collection charges and reasonable attorneys' fees. Guarantor further agrees
that, if and to the extent any the Guaranteed Party receives any payment on
account of any of the Indebtedness (whether from any Debtor, Guarantor or a
third party obligor or from the sale or other disposition of any collateral) and
such payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy act, state or federal law,
common law or equitable cause, then the part of the Indebtedness intended to be
satisfied shall be revived and continued in full force and effect as if said
payment had not been made. The foregoing provisions of this paragraph shall
survive the termination or revocation of this Guaranty.
Guarantor represents, warrants and covenants to the Guaranteed Parties, as
an inducement to the Guaranteed Parties to grant credit to Debtors, that, as of
the date of this Guaranty, the fair saleable value of Guarantor's assets exceeds
Guarantor's liabilities; Guarantor is meeting current liabilities as they
mature; there are not now pending any material court or administrative
proceedings or undischarged judgments against Guarantor and no federal or state
tax liens have been filed or threatened against Guarantor nor is Guarantor in
default or claimed default under any agreement for borrowed money. Guarantor
shall immediately give Agent written notice of any material adverse change in
Guarantor's financial condition, including litigation commenced, tax liens
filed, defaults claimed under Guarantor's indebtedness for borrowed money or
bankruptcy proceedings commenced against Guarantor or commenced by Guarantor or
by any third party. Guarantor shall at such reasonable times as Agent requests
furnish Guarantor's current financial statements to Agent and permit Agent or
its representatives to inspect Guarantor's financial records and properties and
make extracts therefrom in order to evaluate the financial condition of
Guarantor.
This Guaranty is a primary, immediate and original obligation of Guarantor
and is an absolute, unconditional and continuing guaranty of payment of the
Indebtedness and not of its collectibility only, is not contingent upon the
exercise or enforcement by the Guaranteed Parties of any remedies the Guaranteed
Parties may have against any Debtor or others, or the enforcement of any lien or
realization upon any security the Guaranteed Parties may at any time possess,
and shall remain in full force and effect without regard to future changes in
conditions, including change of law or any invalidity or irregularity with
respect
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to the issuance of any obligations of any Debtor to any Guaranteed Party or with
respect to the execution and delivery of any agreement between Debtors and any
Guaranteed Party. This Guaranty shall be in addition to any other present or
future guaranty or other security for any of the Indebtedness, shall not be
prejudiced or unenforceable by the invalidity of any such other guaranty or
security and is not conditioned upon or subject to the execution by any other
Person of this Guaranty or any other guaranty or suretyship agreement.
The Guaranteed Parties shall have the right to seek recourse against
Guarantor to the full extent provided for herein and in any other document or
instrument evidencing obligations of Guarantor to the Guaranteed Parties, and
against Debtors to the full extent provided for in any loan agreement among the
Guaranteed Parties and any Debtor. No election to proceed in one form of action
or proceeding, or against any party, or on any obligation, shall constitute a
waiver of any Guaranteed Party's right to proceed in any other form of action or
proceeding or against other parties unless such Guaranteed Party has expressly
waived such right in writing.
Guarantor is fully aware of the financial condition of each Debtor.
Guarantor delivers this Guaranty based solely upon Guarantor's own independent
investigation and in no part upon any representation or statement of any
Guaranteed Party with respect thereto. Guarantor is in a position to and hereby
assumes full responsibility for obtaining any additional information concerning,
each Debtor's financial condition as Guarantor may deem material to Guarantor's
obligations hereunder and Guarantor is not relying upon, nor expecting any
Guaranteed Party to furnish it, any information in such Guaranteed Party's
possession concerning such Debtor's financial condition. Guarantor hereby
knowingly accepts the full range of risks encompassed within a contract of
"Guaranty," which risks include, without limitation, the possibility that a
Debtor will contract additional indebtedness for which Guarantor may be liable
hereunder after a Debtor's financial condition or ability to pay its lawful
debts when they fall due has deteriorated.
The books and records of Agent showing the account among the Guaranteed
Parties and Debtors shall be admissible in evidence in any action or proceeding
against or involving Guarantor as prima facie proof of the items therein set
forth, and the monthly statements of Agent rendered to Debtors, to the extent to
which no written objection is made within 30 days from the date of sending
thereof to Debtors, shall be deemed conclusively correct and shall constitute an
account stated between the Guaranteed Parties and Debtors and shall be binding
on Guarantor.
Guarantor agrees that this Guaranty shall continue in full force and effect
until the date on which all of the Indebtedness has been fully paid and
discharged and all commitments of the Guaranteed Parties under the Credit
Agreement have been terminated. Notwithstanding the foregoing, each Guaranteed
Party agrees that Agent shall release Guarantor from this Guaranty and terminate
this Guaranty by delivering the original of this Guaranty to Guarantor marked
satisfied or terminated on any date on which the Guaranty Release Conditions
have been satisfied. For purposes hereof the term "Guaranty Release Conditions"
shall mean the following conditions: (i) Agent shall have received a written
request from Guarantor requesting that this Guaranty be released and terminated
by Agent, (ii) Debtors' Undrawn Availability (as defined and calculated in the
Credit Agreement) on the date of Agent's receipt of such written release and
termination request from Guarantor and for the period of fifteen (15)
consecutive days immediately preceding Agent's receipt of such written release
and termination request from Guarantor shall be and shall have been equal to or
greater than $8,660,000, and (iii) immediately after giving effect to Agent's
release and termination of this Guaranty Debtors' Undrawn Availability (as
defined and calculated in the Credit Agreement) would not be less than
$6,000,000.
If for any reason any Debtor has no legal existence or is under no legal
obligation to discharge any of the Indebtedness, or if any of the Indebtedness
have become unrecoverable from Debtors by reason of any Debtor's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on Guarantor to the same
extent as if Guarantor had at all times been the principal obligor on all such
Indebtedness. In the event that acceleration of the time for payment of any
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of the Indebtedness is stayed upon the insolvency, bankruptcy or reorganization
of debt or for any other reason, all such amounts otherwise subject to
acceleration under the terms of any instrument or agreement evidencing or
securing the payment of the Indebtedness or otherwise executed in connection
therewith shall be immediately due and payable by Guarantor.
If Guarantor shall have any right under applicable law to terminate or
revoke this Guaranty, which right cannot be waived by Guarantor, Guarantor
agrees that such termination or revocation shall not be effective until a
written notice of such termination or revocation, specifically referring to this
Guaranty and signed by Guarantor, is actually received by an officer of Agent
who is familiar with Debtors' account with the Guaranteed Parties and this
Guaranty; but any such termination or revocation shall not affect the right and
power of any Guaranteed Party to enforce rights arising, incurred or contracted
for prior to Agent's receipt of such written notice of termination or
revocation. If any Guaranteed Party grants loans or other extensions of credit
to or for the benefit of any Debtor or takes other action after the termination
or revocation by Guarantor but prior to Agent's receipt of such written notice
of termination or revocation, then the rights of such Guaranteed Party with
respect thereto shall be the same as if such termination or revocation had not
occurred.
Guarantor agrees that all the rights, benefits and privileges herein and
hereby conferred upon the Guaranteed Parties shall vest in and be enforceable by
each such Guaranteed Party and its successors and assigns. Guarantor further
agrees that all obligations and duties herein shall be binding upon Guarantor
and upon Guarantor's heirs, personal representatives, executors, administrators
and assigns.
To the extent any performance of this Guaranty would violate any applicable
usury statute or other applicable law, the obligation to be fulfilled shall be
reduced to the limit legally permitted, so that this Guaranty shall not require
any performance in excess of the limit legally permitted, but such obligations
shall be fulfilled to the limit of the legal validity. The provisions of the
paragraph shall control every other provision of this Guaranty.
This Guaranty is intended to take effect as a sealed instrument under the
laws of the State of Georgia. This Guaranty, all acts and transactions hereunder
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted according to the internal laws of the State of
Georgia. As part of the consideration for the Guaranteed Party's granting credit
to Debtors, Guarantor hereby agrees that all actions, suits or proceedings
arising directly or indirectly hereunder may, at the option of the Guaranteed
Parties, be litigated in any court having situs within the State of Georgia, and
Guarantor hereby expressly consents to the jurisdiction of any state or federal
court located within said state, and consents that any service of process in
such action or proceedings may be made by personal service upon Guarantor
wherever Guarantor may be then located, or by certified or registered mail
directed to Guarantor at Guarantor's last known address.
This Guaranty expresses the entire understanding of the parties hereto with
respect to the subject matter hereof and may not be changed orally, and no
obligation of Guarantor can be released or waived by the Guaranteed Parties or
any of their respective officers or agents, except by a writing signed by a duly
authorized officer of Agent.
Until all of the Indebtedness has been paid in full and the Credit
Agreement has been terminated, Guarantor shall have no claim, right or remedy
(whether or not arising in equity, by contract or applicable law) against any
Debtor or any other Person by reason of Guarantor's payment or other performance
hereunder. Without limiting the generality of the foregoing, Guarantor hereby
subordinates to the full and final payment of the Indebtedness any and all legal
or equitable rights or claims that Guarantor may have to reimbursement,
subrogation, indemnity and exoneration and agrees that until all of the
Indebtedness has been paid in full and the Credit Agreement has been terminated,
Guarantor shall have no recourse to any assets or property of any Debtor
(including any assets securing any of the Indebtedness) and no right of recourse
against or contribution from any other Person in any way directly or
contingently liable for any of the
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Indebtedness, whether any of such rights arise under contract, in equity or
under applicable law. The provisions of this Guaranty shall be supplemental to
and not in derogation of any rights and remedies of any Guaranteed Party or any
affiliate of any Guaranteed Party under any separate subordination agreement
that any Guaranteed Party or such affiliate may at any time or from time to time
enter into with Guarantor.
As used herein, all references to the term "Guarantor" shall mean Guarantor
and Guarantor's personal representatives and assigns (including any receiver,
trustee or custodian for Guarantor or any of his assets or Guarantor in his
capacity as debtor or debtor-in-possession under the United States Bankruptcy
Code); all references to the term "Guaranteed Parties" shall mean the Guaranteed
Parties and their respective its successors and assigns; and all references to
the term "Debtor" shall mean any Debtor and its successors and assigns
(including any receiver, trustee or custodian for such Debtor or any of his
assets or such Debtor in his capacity as debtor or debtor-in-possession under
the United States Bankruptcy Code); all references to the term "Person" wherever
used herein shall mean any individual, sole proprietorship, partnership,
corporation, business trust, limited liability company, unincorporated
association, joint stock corporation, trust, joint venture or other form of
business entity or any government or any agency or instrumentality or political
subdivision thereof; all references to the plural shall also mean the singular,
and all references to the singular shall also mean the plural; and all
references to "include" or "including" shall mean "including, without
limitation."
To the fullest extent permitted by applicable law, Guarantor and each
Guaranteed Party each hereby waives the right to a jury trial in any action,
suit, proceeding, or counterclaim arising out of or related to this guaranty,
and Guarantor further waives any rights arising under applicable statutes or
otherwise to require the Guaranteed Parties to institute suit against any Debtor
or any other Person liable for any of the Indebtedness or to exhaust the
Guaranteed Parties' rights and remedies against debtor or any other Person
liable for any of the Indebtedness, Guarantor being bound to the payment of any
and all Indebtedness to the extent provided herein.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty, this 14th day of
March, 2000.
/s/ Xxxxxxx X. X'Xxxxxx (SEAL)
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Witness Xxxxxxx X. X'Xxxxxx ("Guarantor")
Name:
---------------------- Social Security No.
Guarantor's Address:
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