G U A R A N T Y
TO: BNY FINANCIAL CORPORATION
In consideration of your entering into or your refraining from terminating at
this time that certain Revolving Credit, Term Loan and Security Agreement dated
the date hereof ("Ditel Loan Agreement") between you and TII-Ditel, Inc.
("Ditel") and that certain Revolving Credit, Term Loan and Security Agreement
dated the date hereof (the "Crown Loan Agreement"; together with the Ditel Loan
Agreement, individually and collectively, the "Agreement") executed between you
and Crown Tool & Die Company, Inc. ("Crown"; together with Ditel, individually
and collectively, the "Client") the undersigned hereby guarantees to BNY
Financial Corporation (hereinafter called the "Company"), its successors and
assigns, the prompt payment at maturity, or whenever they may become due in
accordance with any of their terms, of all now existing and hereafter arising
liabilities, indebtedness and obligations of the Client to the Company
(including "Obligations," as defined in the Agreement, if such term is defined
therein), whenever and however arising or acquired by the Company, whether
direct or indirect, absolute or contingent (collectively, the "Obligations") and
whether the same may now be or hereafter become due from the Client or the
executors, administrators, successors or assigns of the Client, including the
cost of protest and all legal expenses of or for collection, or for realization
upon any collateral for the Obligations ("Collateral") or other guaranty. If
this guaranty and/or any Obligation is placed with an attorney for collection,
the undersigned further agrees to pay an attorney's fee of fifteen percent of
any principal and interest due and demanded, which is hereby agreed to be just
and reasonable and which shall be recoverable with the amount due under this
guaranty.
Demand of payment, presentment, protest and notice of dishonor or non-payment
are hereby expressly waived, and if any of the Obligations are payable on
demand, the Company may, in its sole and absolute discretion, determine the
reasonableness of the period, if any, to elapse prior to the making of demand.
The undersigned hereby consents and agrees that, without notice to or further
assent from the undersigned for the purposes of this Guaranty, the time of
payment of all or any of the Obligations, or any other provisions of the
Obligations, may be extended, changed or modified, the parties thereto
discharged, any or all Collateral released without obtaining other Collateral in
substitution therefor, and any composition or settlement consummated and
accepted, and that the undersigned will remain bound upon this guaranty
notwithstanding one or more such extensions, changes, modifications, discharges,
releases, compositions or settlements. The undersigned further consents and
agrees that this guaranty shall not be impaired or otherwise affected by any
failure to call for, take, hold, protect or perfect, continue the perfection of
or enforce any security interest in or other lien upon, any Collateral or by any
failure to exercise, delay in the exercise, exercise or waiver of, or
forbearance or other indulgence with respect to, any right or remedy available
to the Company. Any statement of account which is binding on the Client under
the Agreement shall be binding on the undersigned for all purposes under this
guaranty.
Subject to the terms of any security agreement executed by the undersigned in
favor of the Company pursuant to which the Collateral has been pledged to the
Company, the Company may also at any time in its discretion sell, assign,
transfer and deliver the whole of the Collateral, or any part thereof, or any
substitutes therefor, or any additions thereto, at public or private sale, at
any time or place selected by the Company, at such prices as it may deem best
and either for cash or for credit or future delivery, at the option of the
Company without either demand, advertisement or notice of any kind to the
undersigned, which are hereby expressly waived.
The undersigned assigns, pledges and grants a security interest to the Company
in any money or property belonging to the undersigned at any time in the
possession of the Company or in the possession of any parent, affiliate or
subsidiary of the Company (hereinafter called a "Related Company"), including
any deposit balances and all property held by the Company or a Related Company
for any purpose including safekeeping, custody, transmission, collection,
or pledge, and all proceeds of the foregoing, as security for the performance by
the undersigned of the obligations under this guaranty, whether due or not, with
full power and authority to apply any such money, property and proceeds to the
extinguishment of any such obligations and to sell, enforce, collect or
otherwise realize on said money, property or proceeds, all in accordance with
applicable law and the terms of any and all security agreements executed by the
undersigned in favor of the Company.
The undersigned agrees that the Company is not to be obligated in any manner to
inquire into the powers of the Client, or its successors, its or their
directors, officers, or agents, acting or purporting to act on its or their
behalf, and any liabilities purporting to be contracted for the Client, or its
successors, by its or their directors, officers, or agents, in the professed
exercise of such powers, shall be deemed to form a part of the liabilities
guaranteed hereunder even though the incurrence of such liabilities be in excess
of the powers of the Client, its successors, or its or their directors,
officers, or agents aforesaid, or shall be in any way irregular, defective or
informal.
The liability of the undersigned on this guaranty shall be direct, immediate,
absolute, continuing, unconditional, unlimited and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense hereto. Such
liability shall not be conditional or contingent upon the pursuit by the Company
of whatever remedies it may have against the Client or the Client's successors,
executors, administrators or assigns, or the security or liens it may possess,
and this guaranty shall be and shall be construed as being and intended to be, a
continuing guaranty of the payment of any and all Obligations either made,
endorsed or contracted by the Client, or any successor of the Client, prior to
the receipt by the Company of written notice of the revocation of this guaranty
by the undersigned, and of all extensions or renewals thereof in whole or in
part; and notwithstanding the death of, or the revocation of this guaranty by,
the undersigned guarantor, the liability of the guarantor so revoking and of the
estate of the guarantor who dies shall continue as to Obligations incurred or
contracted by the Client, or any successor of the Client, prior to such
revocation or death and as to all extensions and renewals thereof, in whole or
in part.
If any payment of the Obligations is made by or for the benefit of the Client
and is repaid by the Company to the Client or any other party pursuant to any
federal, state or other law, including those relating to bankruptcy, insolvency,
preference or fraudulent transfer, then to the extent of such repayment, the
liability of the undersigned with respect to such Obligation shall continue in
full force and effect. The undersigned agrees that if the Company gives to the
undersigned written notice of the institution of any action or proceeding, legal
or otherwise between the Company and the Client, the undersigned shall be
conclusively bound by the adjudication in any such legal or other proceeding, or
by any judgment or award or decree entered therein.
Until such time as the Obligations have been fully and indefeasibly paid, the
undersigned subordinates any claim or other right which the undersigned may now
have or hereafter acquire against the Client or any other person that is
primarily or contingently liable on any obligation that arises from the
existence or performance of the undersigned's obligations under this guaranty,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification.
The undersigned also waives the right to assert in any action or proceeding upon
this guaranty any defense, offsets or counterclaims which the undersigned may
have with respect thereto. This guaranty shall be governed by and construed and
interpreted in accordance with the laws of the State of New York and all actions
and proceedings arising out of or in connection therewith shall be litigated in
the federal or state courts of such State or, at the Company's option, in any
other courts as the Company may select and the undersigned agrees that such
courts are convenient forums and the undersigned submits to the personal
jurisdiction of such courts. This guaranty cannot be altered or discharged
orally. Notice of the acceptance of this guaranty is hereby waived.
The provisions of this guaranty are severable, and if any clause or provision
hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall attach only to such
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clause or provision in any such jurisdiction or part thereof, and shall not in
any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this guaranty in any jurisdiction.
THE UNDERSIGNED WAIVES THE RIGHT TO TRIAL BY JURY IN ALL ACTIONS BROUGHT BY OR
AGAINST THE COMPANY.
IN WITNESS WHEREOF, the undersigned has duly executed these presents this 30th
day of April, 1998.
TII CORPORATION
By: /S/ XXXX XXXXXXX
-----------------------------
Title: Vice President-Finance
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
STATE OF
SS.
COUNTY OF
On this 30th day of April, 1998, before me personally appeared Xxxx Xxxxxxx to
me known, who being by me duly sworn, did depose and say, that he is the Vice
President of TII Corporation, the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
board of directors of said corporation.
/S/ XXXXXX XXXXXXX
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Notary Public
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