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EXHIBIT 10.12
GUARANTY AGREEMENT
WHEREAS, the execution of this Guaranty Agreement is a condition to
Global Election Systems Inc., a British Columbia corporation ("Borrower"),
borrowing from Xxxxx, Xxxxx & Company Limited, an Ontario corporation
("Lender"), the aggregate principal amount of Four Million and No/100 Canadian
Dollars (CAD $4,000,000.00);
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned, Global Election Systems, Inc., a
Delaware corporation the address of which is 0000 Xxxxxxx Xxxx, XxXxxxxx, Xxxxx
00000 (the "Guarantor"), hereby irrevocably and unconditionally guarantees to
Lender the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined), this Guaranty Agreement being upon the
following terms:
1. The term "Guaranteed Indebtedness", as used herein means all
obligations, indebtedness, and liabilities of Borrower evidenced by that certain
promissory note of even date herewith, executed by Borrower and payable to the
order of Lender in the principal amount of Four Million and No/100 Canadian
Dollars (CAD $4,000,000.00) and all extensions, renewals, and modifications
thereof (the "Note"; all capitalized terms used herein shall have the meanings
given to such terms in the Note). The term "Guaranteed Indebtedness" shall
include any and all post-petition interest and expenses (including reasonable
attorneys' fees) whether or not allowed under any bankruptcy, insolvency, or
other similar law.
2. This instrument shall be an absolute, continuing, irrevocable, and
unconditional guaranty of payment and performance, and not a guaranty of
collection, and Guarantor shall remain liable on its obligations hereunder until
the payment and performance in full of the Guaranteed Indebtedness. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or which Guarantor may have against Borrower, Lender, or any other
party, shall be available to, or shall be asserted by, Guarantor against Lender
or any subsequent holder of the Guaranteed Indebtedness or any part thereof or
against payment of the Guaranteed Indebtedness or any part thereof.
3. If Guarantor becomes liable for any indebtedness owing by Borrower
to Lender by endorsement or otherwise, other than under this Guaranty Agreement,
such liability shall not be in any manner impaired or affected hereby, and the
rights of Lender hereunder shall be cumulative of any and all other rights that
Lender may ever have against Guarantor. The exercise by Lender of any right or
remedy hereunder or under
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any other instrument, or at law or in equity, shall not preclude the concurrent
or subsequent exercise of any other right or remedy.
4. In the event of default by Borrower in payment or performance of the
Guaranteed Indebtedness, or any part thereof, when such Guaranteed Indebtedness
becomes due, whether by its terms, by acceleration, or otherwise, Guarantor
shall promptly pay the amount due thereon to Lender without notice or demand in
lawful currency of the United States of America and it shall not be necessary
for Lender, in order to enforce such payment by Guarantor, first to institute
suit or exhaust its remedies against Borrower or others liable on such
Guaranteed Indebtedness, or to enforce any rights against any collateral which
shall ever have been given to secure such Guaranteed Indebtedness. In the event
such payment is made by Guarantor, then Guarantor shall be subrogated to the
rights then held by Lender with respect to the Guaranteed Indebtedness to the
extent to which the Guaranteed Indebtedness was discharged by Guarantor and, in
addition, upon payment by Guarantor of any sums to Lender hereunder, all rights
of Guarantor against Borrower or any collateral arising as a result therefrom by
way of right of subrogation, reimbursement, or otherwise shall in all respects
be subordinate and junior in right of payment to the prior indefeasible payment
in full of the Guaranteed Indebtedness.
5. If acceleration of the time for payment of any amount payable by
Borrower under the Guaranteed Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower, all such amounts otherwise subject to
acceleration under the terms of the Guaranteed Indebtedness shall nonetheless be
payable by Guarantor hereunder forthwith on demand by Lender.
6. Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired, reduced, or
affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of Guarantor: (a) the taking or accepting of collateral as
security for any or all of the Guaranteed Indebtedness or the release,
surrender, exchange, or subordination of any collateral now or hereafter
securing any or all of the Guaranteed Indebtedness; (b) any partial release of
the liability of Guarantor hereunder, or the full or partial release of any
other guarantor from liability for any or all of the Guaranteed Indebtedness;
(c) the dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any
other party at any time liable for the payment of any or all of the Guaranteed
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (e) any adjustment, indulgence, forbearance,
waiver, or compromise that may be granted or given by Lender to Borrower,
Guarantor, or any other party ever liable for any or all of the Guaranteed
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Indebtedness; (f) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection of any of the Guaranteed
Indebtedness or to foreclose or take or prosecute any action in connection with
any instrument, document, or agreement evidencing, securing, or otherwise
relating to any or all of the Guaranteed Indebtedness; (g) the unenforceability
or invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any other party
to Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence, structure,
or ownership of Borrower; or (n) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower or Guarantor.
7. Guarantor represents and warrants to Lender as follows:
(a) Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation, is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would have a
material adverse effect on its business, financial condition, or
operations.
(b) Guarantor has the corporate power and authority and legal
right to execute, deliver, and perform its obligations under this
Guaranty Agreement and this Guaranty Agreement constitutes the legal,
valid, and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its respective terms, except as limited by
bankruptcy, insolvency, or other laws of general application relating
to the enforcement of creditor's rights.
(c) The execution, delivery, and performance by Guarantor of
this Guaranty Agreement have been duly authorized by all requisite
action on the part of Guarantor and do not and will not violate or
conflict with the certificate of incorporation or bylaws of Guarantor
or any law, rule, or regulation or any order, writ, injunction, or
decree of any court, governmental authority or agency, or arbitrator
and do not and will not conflict with, result in a breach of, or
constitute a default under, or result in the imposition of any lien
upon any assets of Guarantor pursuant to the provisions of any
indenture, mortgage, deed of trust,
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security agreement, franchise, permit, license, or other instrument or
agreement to which Guarantor or its properties is bound.
(d) No authorization, approval, or consent of, and no filing
or registration with, any court, governmental authority, or third party
is necessary for the execution, delivery or performance by Guarantor of
this Guaranty Agreement or the validity or enforceability thereof.
(e) The value of the consideration received and to be received
by Guarantor as a result of Lender making extensions of credit to
Borrower and Guarantor executing and delivering this Guaranty Agreement
is reasonably worth at least as much as the liability and obligation of
Guarantor hereunder, and such liability and obligation have benefitted
and may reasonably be expected to benefit Guarantor directly or
indirectly.
(f) Guarantor has, independently and without reliance upon
Lender and based upon such documents and information as Guarantor has
deemed appropriate, made its own analysis and decision to enter into
this Guaranty Agreement.
8. No amendment or waiver of any provision of this Guaranty Agreement
or consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by Lender. No failure
on the part of Lender to exercise, and no delay in exercising, any right, power,
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power, or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
9. Any acknowledgment or new promise, whether by payment of principal
or interest or otherwise and whether by Borrower or others (including
Guarantor), with respect to any of the Guaranteed Indebtedness shall, if the
statute of limitations in favor of Guarantor against Lender shall have commenced
to run, toll the running of such statute of limitations and, if the period of
such statute of limitations shall have expired, prevent the operation of such
statute of limitations.
10. This Guaranty Agreement is for the benefit of Lender and its
successors and assigns, and in the event of an assignment of the Guaranteed
Indebtedness, or any part thereof, the rights and benefits hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty Agreement is binding not only on Guarantor, but on
Guarantor's successors and assigns.
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11. Guarantor recognizes that Lender is relying upon this Guaranty
Agreement and the undertakings of Guarantor hereunder in making extensions of
credit to Borrower and further recognizes that the execution and delivery of
this Guaranty Agreement is a material inducement to Lender in making extensions
of credit to Borrower. Guarantor hereby acknowledges that there are no
conditions to the full effectiveness of this Guaranty Agreement.
12. This Guaranty shall be governed by and construed in accordance with
the laws of British Columbia or Texas at the election of the Lender. Guarantor
hereby irrevocably (i) submits to the nonexclusive jurisdiction of such courts,
and (ii) waives any objection it may now or hereafter have as to the venue of
any such action or proceeding brought in such court or that such court is an
inconvenient forum. Guarantor agrees that service of process upon it may be made
by certified or registered mail, return receipt requested, at its address
specified below. Nothing herein shall affect the right of Lender to serve
process in any other matter permitted by law or shall limit the right of Lender
to bring any action or proceeding against Guarantor or with respect to any of
Guarantor's property in courts in other jurisdictions.
13. Guarantor shall pay on demand all reasonable attorneys' fees and
all other costs and expenses incurred by Lender in connection with the
preparation, administration, enforcement, or collection of this Guaranty
Agreement.
14. Guarantor hereby waives promptness, diligence, notice of any
default under the Guaranteed Indebtedness, demand of payment, notice of
acceptance of this Guaranty Agreement, presentment, notice of protest, notice of
dishonor, notice of the incurring by Borrower of additional indebtedness, and
all other notices and demands with respect to the Guaranteed Indebtedness and
this Guaranty Agreement.
15. Guarantor hereby represents and warrants to Lender that Guarantor
has adequate means to obtain from Borrower on a continuing basis information
concerning the financial condition and assets of Borrower and that Guarantor is
not relying upon Lender to provide (and Lender shall have no duty to provide)
any such information to Guarantor either now or in the future.
16. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
INDEBTEDNESS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY AGREEMENT IS INTENDED BY GUARANTOR AND
LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY
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AGREEMENT, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF
PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS
GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
EXECUTED as of March 15, 2001.
GUARANTOR:
GLOBAL ELECTION SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, President
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