Exhibit 10.20
GUARANTEE
In consideration of Bear, Xxxxxxx Securities Corp. agreeing to provide
a line of credit to Direct Placement (Obligor) of up to Three Million Dollars
($3,000,000) as set forth in the terms of a promissory note given by the Obligor
to Bear, Xxxxxxx Securities Corp. dated December 17, 2001 (the "Promissory
Note"), the undersigned, Xxxxx Xxxxxxxxxx, residing at 000 Xxxxxx Xxxxxx, Xx
Xxxxx, XX 00000 ((Guarantor), absolutely and unconditionally guarantees the full
and prompt payment when due by Obligor, of any and all Obligor's obligations
(and any expenses including any reasonable attorneys' fees arising therefrom)
under the terms of the Promissory Note (the Guaranteed Obligation) to Bear,
Xxxxxxx Securities Corp. (Beneficiary ).
Guarantor hereby agrees that if Obligor shall fail at any time to make
due and punctual payment to Beneficiary of any Guaranteed Obligation, Guarantor
shall forthwith pay such amount without demand therefor. Guarantor's Obligation
hereunder shall be paid without set-off or counter-claim against any obligation
Beneficiary may owe to Guarantor.
Section 1. Obligations Unconditional, Consents, Waivers and Renewals.
(a) Guarantor hereby agrees that this Guarantee is a continuing guarantee and
that its Obligation hereunder shall be absolute and unconditional, irrespective
of the value, validity or enforceability of the Guaranteed Obligation and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor in its capacity as such. Without
limiting the generality of the foregoing, the occurrence or existence of one or
more of the following at any time or from time to time, without notice to or the
consent of Guarantor, shall not (x) preclude the exercise by Beneficiary of any
right, remedy or power hereunder or under any other agreement with Beneficiary,
(y) constitute a legal or equitable defense to the payments by Guarantor of its
Obligation hereunder, or (z) alter or impair the obligations or liability of
Guarantor hereunder, which will remain absolute and unconditional as described
above:
(i) the time for any performance of or compliance with the
Guaranteed Obligation shall be waived, extended, renewed,
replaced, compromised, modified, or released;
(ii) any of the acts mentioned in any agreement between the
Obligor and Beneficiary shall be done or omitted;
(iii) the Guaranteed Obligation shall become due prior to their
stated maturity (whether upon liquidation, close-out,
acceleration or early termination or otherwise), or the
Guaranteed Obligation shall be amended or otherwise
modified in any respect, or any right under any governing
agreement with Beneficiary or any other agreement or
instrument referred to therein shall be amended or
otherwise modified in any respect (other than any
amendment or other modification of this Guarantee not
consented to by Guarantor), or any other guarantee of the
Guaranteed Obligation or any collateral for either such
other guarantee or for the Guaranteed Obligation shall be
released, substituted or exchanged in whole or in part or
otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of,
Beneficiary as security for the Guaranteed Obligation
shall fail to be perfected;
(v) any event of default or other similar condition or event
under any agreement with Beneficiary (each, an Event of
Default) or of any event that, with the giving of notice
or the lapse of time or both, would constitute an Event of
Default;
(vi) the existence of any insolvency proceedings with respect
to the Obligor or any other guarantor of or obligor on any
of the Guaranteed Obligation;
(vii) any right of set-off Guarantor may have against
Beneficiary, which right of set-off Guarantor agrees not
to assert with respect to the Guaranteed Obligation;
(viii) lack of or limitation on the status or power of the
Obligor or any other guarantor of or obligor on any of the
Guaranteed Obligation; or
(ix) the Guaranteed Obligation is or becomes unenforceable for
any reason.
(b) Guarantor hereby expressly waives any requirement that Beneficiary
exhaust any right, power or remedy or proceed against the Obligor
(including any right of set-off) under common law or any agreement with
Beneficiary or any other agreement or instrument referred to therein,
or against any other person or entity under any other guarantee of, or
security for, any of the Guaranteed Obligation, it being agreed that
this Guarantee is a guarantee of payment and not of collection.
(c) Guarantor hereby expressly waives notice of acceptance of this
Guarantee and of Beneficiary entering into any transaction and also
expressly waives diligence, presentment, demand of payment,
performance, protest and notice of dishonor, the filing of claims and
all demands whatsoever.
(d) Guarantor hereby agrees that, until the payment and satisfaction in
full of the Guaranteed Obligation, Guarantor will not exercise any
right or remedy (excluding the filing of any proof of claim in any
insolvency proceedings with respect to the Obligor) against the Obligor
or any other guarantor of any of the Guaranteed Obligation or any
security therefor arising by reason of any performance by Guarantor of
its Obligations, whether by subrogation or otherwise. Beneficiary shall
have no obligation, and Guarantor's Obligation hereunder shall not be
affected by any failure by Beneficiary, to file any proof of claim
relating to the Guaranteed Obligation in any insolvency proceedings
with respect to the Obligor.
(e) This Guarantee will not be discharged except by full, final and
irrevocable payment to Beneficiary of the Guaranteed Obligation
incurred while it is effective, and this Guarantee, and any security
therefor, shall continue to be effective or be reinstated (as the case
may be) if at any time all or any part of any payment or interest
thereon of a Guaranteed Obligation or delivery by Obligor or by
Guarantor of the Guaranteed Obligation is avoided, repaid or restored
for any reason whatsoever, all as though such payment had not been
made.
Section 2. Representations, Warranties and Covenants. Guarantor
represents, warrants and covenants to Beneficiary that (a) Guarantor has the
full right, power and authority to make, execute, deliver and perform this
Guarantee and to pay and perform the Guaranteed Obligation under this Guarantee;
(b) Guarantor does not hold Bear Xxxxxxx stock that is not freely transferable
within the meaning of NYSE Rule 431(f)(4) and is otherwise in compliance with
the requirements of NYSE Rule 431(f)(4); (c) this Guarantee constitutes the
valid and legally binding obligation of Guarantor, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, in each case, as they relate to a
proceeding or relief pertaining to Guarantor and not to Obligor, and (ii) as
limited by laws relating to the availability of specific performance or
injunctive relief.
Section 3. Additional Guarantees; Effect of Guaranty on Guarantor's
Accounts. Guarantor understands that, in addition to this Guarantee, other
entities may issue similar guarantees to ensure the complete performance of
Obligor's Obligations. This Guarantee shall not be diminished in any way by the
grant of additional guarantees of Obligor's Obligations to Beneficiary or by the
existence of other guarantors, and this Guarantee may be enforced in full
against Guarantor without joining any other guarantor, as the case may be.
Guarantor waives the doctrine or marshalling of assets and any other similar
doctrine.
Section 4. Termination. The Guarantor further agrees that this is a
continuing guarantee which shall remain in effect until Obligor has satisfied in
full its obligations under the Promissory Note and the Promissory Note is
cancelled.
Section 5. Successors; Assigns. Any assignment of this Guarantee by the
Guarantor without the prior written consent of an authorized representative of
Beneficiary shall be null and void. This Guarantee shall inure to the benefit of
any successor or permitted assignees of Beneficiary. If Guarantor is an
individual, this Guarantee shall be binding upon the respective estate, heirs,
personal representatives, assignees and successors, and the death of Guarantor
shall not terminate liability hereunder, including, but not limited to,
Guaranteed Obligation incurred after Guarantor's death, which can be terminated
only by notice in accordance with Section 8 below and on the terms set forth
herein.
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Section 6. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of law principles thereof.
Section 7. Expenses. Guarantor agrees to pay, on demand, all
out-of-pocket expenses (including legal fees and disbursements) incurred by each
Beneficiary in connection with the enforcement or protection of its rights
hereunder or any litigation, procedures or discovery related to this Guarantee.
Section 8. Miscellaneous. (a) Notices to Beneficiaries. Notices by or
on behalf of Guarantor to Beneficiary shall be written, addressed to Bear
Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Senior Managing
Director, Global Credit Department or such other address of which Beneficiary
gives Guarantor written notice and shall be effective upon actual receipt by
Beneficiary at such address. (b) Notices to Guarantors. Notices, demands, or
other communications to Guarantor under this Guarantee will be delivered,
transmitted or mailed to the address, telephone or facsimile number listed
below, unless and until three business days after Beneficiary has received
written notice from Guarantor of a different address or telephone or facsimile
number. Notices to Guarantor shall be deemed received when properly addressed
(a) 3 days after mailing postage prepaid or (b) the day delivered if personally
delivered, including a facsimile transmission, or sent by overnight courier.
Notices given to Guarantor by facsimile transmission shall be deemed received
during normal business hours of the recipient when the transmitting facsimile
signals the successful transmission of the facsimile during such normal business
hours. Notices given to Guarantor by telephone shall be deemed received when
Beneficiary calls by telephone the person authorized to receive telephone
notices listed below, during normal business hours of the recipient at the
telephone number listed below.
(c) Facsimile copies. Guarantor hereby authorizes Beneficiary to accept
facsimile copies of this or any other document or instruction as if it were the
original and to accept signatures on facsimiles as if they were originals.
(d) Waiver. Neither Beneficiary's failure to insist at any time upon
strict compliance with this Guarantee or with any of the terms hereof nor any
continued course of such conduct on its part shall constitute or be considered a
waiver by Beneficiary of any of its rights or privileges hereunder.
(e) Jurisdiction to Hear Disputes; Service of Process. If there is not
an Institutional Account Agreement in effect between Beneficiary and Guarantor,
then the provisions of Annex A hereto, which shall be deemed incorporated herein
by reference, shall be applicable with respect to any suit, action or proceeding
relating to this Guarantee.
Xxxxx Xxxxxxxxx
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President and CEO
Attest: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Address for Notice to Guarantor
Dated: December 14, 2001 c/o DirectPlacement, Inc.
0000 Xxxxx Xxxxx Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
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ANNEX A TO GUARANTEE
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(a) (i) ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
(ii) THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
(iii) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
(iv) THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
(v) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
BY SIGNING THE GUARANTEE, XXXXXXXXX AGREES THAT CONTROVERSIES ARISING UNDER OR
RELATING TO THIS GUARANTEE BETWEEN GUARANTOR AND BENEFICIARY, ITS PREDECESSORS,
AND ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, AND ANY OF THEIR DIRECTORS,
EMPLOYEES, OR ANY CONTROL PERSONS AND ANY OF THEIR AGENTS, WHETHER ARISING PRIOR
TO, ON, OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY BINDING
ARBITRATION. ANY ARBITRATION UNDER THE GUARANTEE SHALL BE HELD ONLY AT THE
FACILITIES OF, BEFORE AN ARBITRATION PANEL APPOINTED BY, AND PURSUANT TO THE
RULES OF THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE, INC.,
OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. GUARANTOR MAY ELECT ONE
OF THE FOREGOING FORUMS FOR ARBITRATION, BUT IF GUARANTOR FAILS TO MAKE SUCH
ELECTION BY REGISTERED MAIL OR TELEGRAM ADDRESSED TO BEAR, XXXXXXX SECURITIES
CORP., 000 XXXXXXX XXXXXX, XXX XXXX, XX 00000 ATTENTION: CHIEF LEGAL OFFICER (OR
ANY OTHER ADDRESS OF WHICH XXXXXXXXX IS ADVISED IN WRITING), BEFORE THE
EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM BENEFICIARY TO
MAKE SUCH ELECTION, THEN BENEFICIARY MAY MAKE SUCH ELECTION. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE
AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING
JURISDICTION.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION; WHO IS A MEMBER OF A PUTATIVE CLASS
WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE
PUTATIVE CLASS ACTION UNTIL: (x) THE CLASS CERTIFICATION IS DENIED; (y) THE
CLASS IS DECERTIFIED; OR (z) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE
COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A
WAIVER OF ANY RIGHTS UNDER THE GUARANTEE EXCEPT TO THE EXTENT STATED HEREIN.
(b) Notwithstanding the provisions of subparagraph (a) above, either party may
seek, in the U.S. District Court for the Southern District of New York or the
Supreme Court of the State of New York for the County of New York, any such
temporary or provisional relief or remedy ("provisional remedy") provided for by
the laws of the U.S. or the laws of the State of New York as would be available
in an action based upon such dispute or controversy in the absence of an
agreement to arbitrate. The parties acknowledge and agree that it is their
intention to have any such application for a provisional remedy decided by the
Court to which it is made and that such application shall not be referred to or
settled by arbitration. No such application for a provisional remedy, nor any
act or conduct by either party in furtherance of or in opposition to such
application, shall constitute a relinquishment or waiver of any right to have
the underlying dispute or controversy with respect to which such application is
made settled by arbitration in accordance with subparagraph (a) above.
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(c) With respect to any application for a provisional remedy and any application
for judgment on an arbitration award, each party irrevocably (i) submits to the
jurisdiction of the U. S. District Court for the Southern District of New York
or the Supreme Court of the State of New York for the County of New York, (ii)
waives any objection which it may have at any time to the laying of venue of any
proceedings brought in any such court, waives any claim that such proceedings
have been brought in an inconvenient forum and further waives the right to
object, with respect to such proceedings, that such court does not have any
jurisdiction over such party, and (iii) consents to service of process by
certified mail, return receipt requested, to the address provided for herein.
(d) Guarantor hereby irrevocably designates and appoints [________] as its
authorized agent to receive service of process on its behalf in connection with
any legal matters or actions or proceedings based upon, arising out of or
relating in any way to the Guarantee. If for any reason said agent is unable to
act as such, Guarantor will promptly notify Bear Xxxxxxx (in accordance with
Section 8(a) of the Guarantee) and within 30 days appoint an authorized agent
acceptable to Bear Xxxxxxx. If Guarantor fails to designate an authorized agent
to receive service of process or it for any reason such agent is unable to act
as such and no successor has been appointed, Xxxxxxxxx shall be deemed to have
appointed the Office of the Secretary of State of the State of New York as its
authorized agent to receive service of process.
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