EXHIBIT 10.50
CONTINUING UNLIMITED CORPORATE GUARANTY
(NQL Inc.)
Date: May 31, 2001
To: KELTIC FINANCIAL PARTNERS, LP (the "Lender")
For Valuable Consideration, and to induce Lender to loan money and/or
extend credit in reliance hereon, the undersigned, hereby guarantees,
unconditionally, the payment, when due, of each and every obligation, matured or
unmatured, direct or contingent, now existing or hereafter arising, owing to
Lender by Delta Computec Inc., a New York corporation (the "Borrower")
specifically including, but without limitation, under or related to that certain
Loan and Security Agreement dated May 31, 2001 between Borrower and Lender, as
such agreement may be amended, modified, extended or substituted or restated
from time to time.
This Guaranty shall be primary, absolute and unconditional and extend to
and cover every extension or renewal of, and every obligation accepted in
substitution for any obligation guaranteed hereby, and the undersigned shall be
bound hereby irrespective of (i) the existence, value or condition of any
collateral security Lender may at any time hold; (ii) the invalidity,
irregularity or enforceability of any instrument, writing or arrangement
relating to any such credit, loan of money or financial accommodation or of the
obligations thereunder; (iii) the inability or failure of Lender to fully
establish or perfect its lien or security interest in any collateral pledged to
it; (iv) any other circumstance that might constitute a defense to, or discharge
of, the Borrower with respect to any of the obligations hereby guarantied, or
the undersigned in regard to this Guaranty other than payment in full of the
obligations guaranteed hereby; or (v) any present or future law or order of any
government (whether of right or in fact) or of any agency thereof, purporting to
reduce, amend or otherwise affect any obligation of the Borrower or to vary the
terms of payment of the obligations of the Borrower hereby guaranteed.
Without limiting the generality of the foregoing, enforcement of this
Guaranty shall not be contingent upon pursuit by the Lender of any remedies it
may have against any other guarantor or the Borrower, whether pursuant to the
terms of any loan documents or by law, and the Lender, in this regard, shall not
be required to (i) institute any judicial action against Borrower, (ii) enforce
any other remedy against Borrower, or (iii) take any action to realize upon any
property or collateral assigned, pledged or otherwise available to Lender as
security for performance of the obligations of Borrower.
The undersigned hereby waives (i) notice of acceptance of this Guaranty;
(ii) presentment, demand, protest and notice of dishonor of any note or other
obligation hereby guaranteed; and (iii) demand by Lender for observance or
performance of, or enforcement by Lender of any terms or provisions of the loan
documents evidencing the obligations of Borrower, or any terms or provisions of
this Guaranty.
This Guaranty is a continuing guaranty and shall remain in force until
revoked by notice in writing to Lender, and revocation hereof shall not
prejudice Lender's claim hereunder with respect to any obligation arising prior
to revocation.
The undersigned hereby consents and agrees that Lender may, without
prejudice to any claim against the undersigned hereunder, at any time, or from
time to time, in Lender's discretion, and without notice to the undersigned: (i)
waive compliance with, or any defaults under, or grant any other indulgences
with respect to the loan documents evidencing the obligations of the Borrower;
(ii) modify, amend, or change any provisions of the loan documents evidencing
the obligations of the Borrower; (iii) extend or change the time of payment, and
the manner, place or terms of payment of any obligation hereby guaranteed; (iv)
make advances for the purpose of performing any term or covenant pertaining to
the obligations hereby guaranteed with respect to which the Borrower shall be in
default; (v) assign or otherwise transfer the obligations hereby guaranteed, or
any interest therein or herein; (vi) exchange, release, impair or surrender all
or any collateral security which Lender may at any time hold in connection with
any obligation hereby guaranteed; (vii) sell, and purchase, any such collateral
at public or private sale or at any broker's board, crediting net proceeds upon
any obligation secured thereby; (viii) release, discharge, settle or compromise
with the Borrower, or with any other person primarily or secondarily liable with
the Borrower, any obligation hereby guaranteed; or (ix) deal in all respects
with the Borrower as if this Guaranty were not in effect.
The undersigned represents and warrants that (i) the undersigned is a
corporation organized and existing and in good standing under the laws of the
State of Delaware and under the laws of any other state wherein the business,
properties or operations of the undersigned make it necessary to so qualify (ii)
the undersigned has the full power, authority and legal right to enter into,
execute and deliver this Guaranty; (iii) this Guaranty is a valid and binding
legal obligation of the undersigned and is fully enforceable against the
undersigned in accordance with its terms and, as of the date hereof, the
undersigned has no defense to any action or proceeding that may be brought
hereunder; (iv) the execution, delivery and performance by the undersigned of
this Guaranty has been duly authorized by all requisite corporate action, will
not violate any term or condition of the Certificate of Incorporation or By-Laws
of the undersigned and will not violate or constitute a default under any
indenture, note, loan, credit agreement or any other document or instrument to
which the undersigned is a party or by which the undersigned is bound in any
manner which would materially and adversely affect its ability to carry out any
of the terms, covenants and conditions of this Guaranty; (v) the undersigned has
a direct interest in the financial well-being of the Borrower; and (vi) there
has been no material adverse change in the financial condition of the
undersigned from that shown on the most recent financial statements delivered to
Lender.
The undersigned is not in violation of any decree, ruling, judgment, order
or injunction applicable to it, or any law, ordinance, rule or regulation of
whatever nature which taken alone or in the aggregate, would materially and
adversely affect its ability to carry out any of the terms, covenants and
conditions of this Guaranty. There are no actions, proceedings or investigations
pending or threatened against or affecting the undersigned before or by any
court, arbitrator,
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administrative agency or other governmental authority or entity, which, taken
alone or in the aggregate, if adversely decided, would materially and adversely
affect its ability to carry out any of the terms and conditions of this
Guaranty.
This Guaranty and the undersigned's liability hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time, prepayment,
payment or other value received by the Lender from any source, or any part
thereof, of any of the obligations guaranteed hereunder is rescinded or
otherwise restored or returned by the Lender by reason of (i) any judgment,
decree or order by any court or administrative body having competent
jurisdiction; (ii) any settlement or compromise of any such claim; or (iii)
otherwise, all as though such payment had not been made, notwithstanding any
termination hereof or the cancellation of any instrument or writing or other
agreement evidencing the obligations of the undersigned.
No delay on the Lender's part in exercising any right hereunder, or in
taking any action to collect or enforce payment of any obligation hereby
guaranteed, either as against the Borrower or any other person primarily or
secondarily liable with the Borrower, shall operate as a waiver of any such
right or in any manner prejudice the Lender's rights against the undersigned.
THE UNDERSIGNED HEREBY WAIVES THE FOLLOWING IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE, ARISING UNDER OR BY REASON OF OR RELATING TO THIS GUARANTY:
(i) THE RIGHT TO A TRIAL BY JURY; (ii) THE RIGHT TO CLAIM A FAIR MARKET VALUE
CREDIT AS TO ANY AND ALL COLLATERAL NOW OR HEREAFTER PLEDGED TO LENDER TO SECURE
THE OBLIGATIONS HEREBY GUARANTEED: (iii) THE RIGHT TO INTERPOSE ANY DEFENSE
EXCEPT INDEFEASIBLE PAYMENT IN FULL OF THE OBLIGATIONS HEREBY GUARANTEED AND
(iv) ANY RIGHT OF SUBROGATION TO WHICH GUARANTOR MIGHT OTHERWISE BE ENTITLED.
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(Initial)
The undersigned agrees that, if the maturity of any obligation hereby
guaranteed is accelerated, by bankruptcy or otherwise, as against the Borrower,
such maturity shall also be deemed accelerated for the purposes of this
Guaranty, and without demand upon or notice to the undersigned.
The undersigned hereby subordinates any and all indebtedness of Borrower to
the undersigned to the prior indefeasible payment and performance of all
obligations hereby guaranteed in accordance with that certain Standstill
Subordination Agreement entered into between the undersigned, the Borrower and
the Lender dated as of the date hereof (the "Subordination Agreement"). The
undersigned agrees that, before it receives payment of any indebtedness owed to
it by Borrower, Lender shall be entitled to receive payment in full of all
obligations hereby guaranteed, subject to the terms and provisions of the
Subordination Agreement. Except as otherwise provided in the Subordination
Agreement, any payments on such
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indebtedness of Borrower to the undersigned shall be collected, enforced and
received by the undersigned as trustee for Lender and be paid over to Lender on
account of the obligations hereby guaranteed, but without reducing or affecting
in any manner the liability of the undersigned under the other provisions
hereof. Lender is authorized and empowered irrevocably (but without any
obligation to so do), in its discretion, as attorney-in-fact (with such power
being coupled with an interest and being irrevocable) for the undersigned or
otherwise (a) in the name of the undersigned, to collect and enforce, and to
submit claims in respect of, such indebtedness of Borrower and to apply any
amounts received thereon to the obligations hereby guaranteed, and (b) to
require the undersigned (i) to collect and enforce, and to submit claims in
respect of, such indebtedness of Borrower, and (ii) to pay any amounts received
on such indebtedness to Lender for application to the obligations hereby
guaranteed. The undersigned hereby assigns to Lender all of the undersigned's
rights to any payments or distributions with respect to such indebtedness of
Borrower.
As further security, the undersigned hereby gives Lender a general lien
upon and right of setoff with respect to any deposit account of the undersigned
with Lender and any other of the undersigned's funds or assets at any time in
Lender's custody or control.
The undersigned hereby authorizes Lender, in its sole discretion, to
disclose any financial or other information about the undersigned to any
present, future or prospective participant or successor in interest in any loan,
advance or other financial accommodation to Borrower from Lender, or any
regulatory body or agency having jurisdiction over Lender. Lender shall request
that each prospective participant or purchaser maintain the information and
documentation submitted to such person or entity in confidence in accordance
with their customary practices.
In the event any proceedings are undertaken by Lender to effect collection
hereunder, the undersigned shall pay all costs and expenses of every kind for
collection, including reasonable attorney's fees incurred by Lender in
connection with the enforcement of this Guaranty.
If the obligations of the Borrower are also guaranteed by any other person
or entity by continuing guaranty or by endorsement of any note of the Borrower
or otherwise, the obligation of such other person or entity and the
undersigned's obligation hereunder shall be deemed to be several, and the
release by Lender of any such other guarantor, or settlement with such
guarantor, or the revocation or impairment of such guaranty, shall not operate
to prejudice Lender's rights against the undersigned hereunder.
The undersigned agrees to deliver to Lender such financial statements and
information as reasonably requested by Lender, from time to time, in form and
substance reasonably satisfactory to Lender.
No delay on the Lender's part in exercising any of the Lender's options,
powers or rights or partial or single exercises thereof, shall constitute a
waiver thereof. No waiver of any of the Lender's rights hereunder and no
modification or amendment of this Guaranty, shall be deemed to be made by Lender
unless the same shall be in writing, duly signed on the Lender's behalf by its
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duly authorized officers, and each such waiver, if any, shall apply only with
respect to the specific instance involved, and shall in no way impair the
Lender's rights or the undersigned's obligations to Lender in any other respect
at any other time.
If any provision (or any part of any provision) contained in this Guaranty
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision (or remaining part of the affected provision) of this Guaranty,
but this Guaranty shall be construed as if such invalid, illegal, or
unenforceable provision (or part thereof) had never been contained herein, but
only to the extent such provision is invalid, illegal, or unenforceable.
The undersigned agrees that: (i) this Guaranty shall be construed in
accordance with and governed by the laws of the State of New York; (ii) any
action or proceeding to enforce this Guaranty may be commenced in State Supreme
Court in Westchester County, New York, or any Federal District Court in the
Southern District of New York; and (iii) it generally, irrevocably and
unconditionally submits to and accepts for itself (and its successors and
assigns) the jurisdiction of the aforesaid courts for the purpose of any such
suit, action or other proceeding and agrees not to contest the validity of any
judgment rendered thereby in any other jurisdiction. The undersigned further
waives, and agrees not to assert, by way of motion as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of the aforesaid courts or is otherwise immune from
legal proceedings, or that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper, or that the loan documents of the Borrower or the subject matter
hereof may not be enforced by any such court.
This Guaranty shall be binding upon the undersigned, as well as its
successors or assigns (except that no such assignment shall be effective without
the prior written consent of Lender).
This Guaranty shall inure to the benefit of, and be enforceable by the
Lender, its successors and assigns, including any subsequent holder of the
obligations hereby guaranteed.
For the purposes of this Guaranty, the singular shall be deemed to include
the plural, and the neuter shall be deemed to include the masculine and the
feminine, and vice versa, as the context may require.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be signed
by its proper corporate officers and sealed with its seal of the day and year
first above written.
ATTEST: NQL Inc.
BY: /s/ Xxxxxx X. Xxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Secretary Title: President
STATE OF CALIFORNIA:
: SS
COUNTY OF Orange:
On May 31, 2001, before me Xxxxxxx Xxxxxxxx, personally appeared Xxxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx
[X] personally known to me and
[X] proved to me on the basis of
satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the
person(s), or the entity upon behalf of
which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxxxxxx
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Signature of Notary Public
Place Notary Seal Above
_____________________________OPTIONAL__________________________________
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
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Document Date: Number of Pages:
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Signer(s) Other Than Named Above:
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Capacity(ies) Claimed by Signer
Signer's Name:
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[_] Individual
[_] Corporate Officer - Title(s):
[_] Partner - [_] Limited [_] General
[_] Attorney In Fact
[_] Trustee
[_] Guardian or Conservator
[_] Other:
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Signer is representing:
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