Exhibit 10.55
GUARANTY
THIS GUARANTY (this "Guaranty") is entered into as of January 1, 1996 by
Xxxx X. Xxxxxx, an individual resident of Dallas, Texas ("Guarantor"), in favor
of and for the benefit of Polyphase Corporation, a Nevada corporation
("Polyphase").
RECITALS:
---------
A. Polyphase has executed and delivered to PLY Stadium Partners, Inc.
a Master Loan Agreement authorizing advances of principal amounts
as may be requested by Polyphase. Up to Four Million Dollars
($4,000,000) of the principal advances will be evidenced by a
Convertible promissory Note. Additional principal advances may be
evidenced by other Promissory Note(s) and if not then by other
documentation of each advance subject to the terms and conditions
of the master Loan Agreement.
B. Guarantor is willing, irrevocably and unconditionally, to guaranty
such obligations of the Company subject to the terms and provisions
hereof.
AGREEMENT:
----------
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby agrees as follows:
SECTION 1. The Guaranty.
------------
1.1 Guaranty of the Guaranteed Obligations. Guarantor hereby irrevocably
and unconditionally guaranties, as primary obligor and not merely as
surety, the due and punctual payment in full of al Guaranteed
Obligations when the same shall become due, whether at stated
maturity, by required prepayment, acceleration, demand or otherwise
(including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. 362(a)). The term "Guaranteed Obligations" used herein in its
----------------------
most comprehensive sense and includes any and all liabilities and/or
obligations ("obligations") of the Company now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, and however arising under or
in connection with the Note.
1.2 Liability of Guarantor Absolute. Guarantor agrees that its
-------------------------------
obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a guarantor or surety
other than payment in full of the Guaranteed Obligations. In
furtherance of the foregoing and without limiting the generality
thereof, Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibilty.
(b) Polyphase may enforce this Guaranty upon the occurrence of any event
of default under the Note (an "Event of Default") notwithstanding
the existence of any dispute between Polyphase and the Company with
respect to the existence of such Event of Default.
(c) The obligations of Guarantor hereunder are independent of the
obligations of the Company under the Note and the obligations of any
other guarantor of the obligations of the Company thereunder, and a
separate action or actions may be brought and prosecuted against
Guarantor whether or not any action is brought against the Company
or any of such other guarantors and whether or not the Company is
joined in any such action or actions.
1
(d) Guarantor's payment of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for a portion of the Guaranteed Obligations,
which has not been paid. Without limiting the generality of the
foregoing, if Polyphase is awarded a judgment in any suit brought
to enforce Guarantor's covenant to pay a portion of Guaranteed
Obligations, such judgment shall not be deemed to release Guarantor
from its covenant to pay the portion of the Guaranteed Obligations
that is not the subject of such suit.
(e) Subject to the terms of the Master Loan Agreement or Promissory
Note, Polyphase, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of Guarantor's
liability hereunder, from time to time may (I) renew, extend,
accelerate, increase the rate of interest on, or otherwise change
the time, place manner or terms of payment of the Guaranteed
Obligations; (ii) settle, compromise, release or discharge, or
accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security
for the payment of this Guaranty or the Guaranteed Obligations;
(iv) release, surrender, exchange, substitute, compromise, settle,
rescind, waive, alter, subordinate or modify, with or without
consideration, any security for payment of the Guaranteed
Obligations, any other guaranties of the Guaranteed Obligations, or
any other obligation of any person with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter
held by or for the benefit of Polyphase in respect of this Guaranty
or the Guaranteed Obligations and direct the order or manner of
sale thereof, or exercise any other right or remedy that Polyphase
may have against any such security, as Polyphase in its discretion
may determine consistent with the master Loan Agreement or Note and
any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right
or remedy of Guarantor against the Company or any security for the
Guaranteed Obligations; and (vi) exercise any other rights under
the master Loan Agreement or Note.
(f) This Guaranty and the obligations of Guarantor hereunder shall be
valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason
(other than payment in full of the Guaranteed Obligations),
including without limitation the occurrence of any of the
following, whether or not Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or
enforce or agreement or election not to assert or enforce, or the
stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand
or any right, power or remedy (whether arising under the Master
Loan Document or Note, at law, in equity or otherwise) with respect
to the Guaranteed Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment
of the Guaranteed Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from ,
any of the terms or provisions (including without limitation
provisions relating to events of default) of the master Loan
Agreement or Note or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guaranteed
Obligations; (iii) the Guaranteed Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments
received from any source (other than payments received from the
proceeds on any security for the Guaranteed Obligations, except to
the extent such security also serves as collateral for indebtedness
other than the Guaranteed Obligations and such payments are applied
to such other indebtedness) to the payment of indebtedness other
than the Guaranteed Obligations, even though Polyphonies might have
elected to apply such
2
payment to any other part or all of the Guaranteed Obligations; (v)
Polyphase's consent to the change, reorganization or termination of
the corporate structure or existence of the Company and to any
corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in
any collateral which secures any of the Guaranteed Obligations;
(vii) any defenses, set-offs or counterclaims which the Company may
allege or assert against Polyphase in respect of the Guaranteed
Obligations, including but not limited to failure of consideration,
breach of warranty, statute of frauds, statute of limitations,
accord and satisfaction or usury; and (viii) any other act or thing
or omission, or delay to do any other act or thing, which may or
might in any manner or to any extent vary the risk of Guarantor as
an obligor in respect of the Guaranteed Obligations.
1.3 Waivers by Guarantor. Guarantor hereby waives, for the benefit of Polyphase:
--------------------
(a) any right to require Polyphase, as a condition of payment or
performance by Guarantor, to (I) proceed against the Company, any
other guarantor of the Guaranteed Obligations or any other person
or entity, (ii) proceed against or exhaust any security held from
the Company, any other guarantor of the Guaranteed Obligations or
any other person or entity, (iii) proceed against or have resort to
any balance of any deposit account or credit on the books of
Polyphase in favor of the Company or any other person or entity, or
(iv) pursue any other remedy in the power of Polyphase whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of the Company including,
without limitation, any defense based on or arising out of the lack
of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than
payment in full of the Guaranteed Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal;
(d) any defense based upon Polyphase's errors or omissions in the
administration of the Guaranteed Obligations, except behavior which
amounts to gross negligence or willful misconduct as determined by
a court of competent jurisdiction;
(e) (i) any principals or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty
and any legal or equitable discharge of Guarantor's obligations
hereunder, (ii) the benefit of any statute of limitations affecting
Guarantor's liability hereunder or the enforcement hereof, (iii)
any rights to set-offs, recoupments or counterclaims, and (iv)
promptness, diligence and any requirement that Polyphase protect,
secure, perfect or insure any security interest or lien or any
property subject thereto;
(f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction,
including acceptance of the Guaranty, notices of default under the
Master Loan Agreement or Note or any agreement or instrument
related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto,
notices of any extension of credit to the Company and notices of
any of the matters referred to in Section 1.2 and any right to
------------
consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty.
1.4 Payment by Guarantor; Application of Payments. Guarantor hereby agrees,
---------------------------------------------
in furtherance of the foregoing and not in limitation of any other right
which Polyphase or any other person or entity may
3
have at law or in equity against Guarantor by virtue hereof, that upon the
failure of the Company to pay any of the Guaranteed Obligations when and as
the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C. 362(a)), Guarantor
will forthwith pay, or cause to be paid, in cash to Polyphase an amount
equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including, without limitation, interest which, but
for the filing of a petition in bankruptcy with respect to the Company,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against the Company for such interest in any such bankruptcy
proceeding) and all other Guaranteed Obligations then owed to Polyphase as
aforesaid. All such payments shall be applied promptly from time to time by
Polyphase:
First, to the payment of the costs and expenses of any collection or
-----
other realization under this Guaranty or the Security Agreement executed by
Guarantor in connection herewith (the "Security Agreement"), including
reasonable compensation to Polyphase and its agents and counsel, and all
expenses, liabilities and advances made or incurred by Polyphase in
connection therewith;
Second, to the payment of all other Guaranteed Obligations; and
------
Third, after payment in full of all Guaranteed Obligations, to the
-----
payment to Guarantor, or its successors and assigns, or to whomever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such payments.
1.5 Subrogation. Until the Guaranteed Obligations shall have been paid in
-----------
full, Guarantor shall withhold exercise of (a) any right of subrogation,
(b) any right of contribution Guarantor may have against any other
guarantor of the Guaranteed Obligations, (c) any right to enforce any
remedy which Polyphase now has or may hereafter have against the Company
or (d) any benefit of, and any right to participate in any security now
or hereafter held by Polyphase. Guarantor further agrees that, to the
extent the withholding of the exercise of its rights of subrogation and
contribution as set forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, any rights of
subrogation Guarantor may have against any other guarantor, shall be
junior and subordinate to any rights Polyphase may have against the
Company, to all right, title and interest Polyphase may have in any such
collateral or security, and to any right Polyphase may have against such
other guarantor. Polyphase may use, sell or dispose of any item of
collateral or security as it sees fit without regard to any subrogation
rights Guarantor may have, and upon any such disposition or sale any
rights of subrogation Guarantor may have shall terminate. If any amount
shall be paid to Guarantor on account of such subrogation rights at any
time when all Guaranteed Obligations shall not have been paid in full,
such amount shall be held in trust for Polyphase and shall forthwith be
paid over to Polyphase to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms
of the Master Loan Agreement or Note or any applicable security
agreement.
1.6 Subordination of Other Obligations of Borrower. Any indebtedness of the
----------------------------------------------
Company now or hereafter held by Guarantor is hereby subordinated in
right of payment to the Guaranteed Obligations, provided prior to an
Event of Default, Guarantor may receive ordinary course or regularly
scheduled payments of such indebtedness. Any such indebtedness of the
Company to Guarantor collected or received by Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for
Polyphase and shall forthwith be paid over to Polyphase to be credited
and applied against the Guaranteed Obligations but without affecting,
impairing or limiting in any manner the liability of Guarantor under any
other provision of this Guaranty.
4
1.7 Expense. Guarantor agrees to pay, or cause to be paid, and to save
-------
Polyphase harmless against liability for, any and all reasonable costs
and expenses (including reasonable fees and disbursements of counsel)
incurred or expended by Polyphase in connection with the enforcement or
preservation of any rights under this Guaranty.
1.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall
-------------------
remain in effect until all of the Guaranteed Obligations shall have been
paid in full.
1.9 Financial Condition of the Company. Loans and other financial
----------------------------------
accommodations may be granted to the Company or continued from time to
time without notice to or authorization from Guarantor regardless of the
financial or other condition of the Company at the time of any such
grant or continuation. Polyphase shall have no obligation to disclose or
discuss with Guarantor its assessment, or Guarantor's assessment, of the
financial condition of the Company. Guarantor has adequate means to
obtain information from the Company on an continuing basis concerning
the financial condition of the Company and its ability to perform its
obligations, and Guarantor assumes the responsibility for being and
keeping informed of the financial condition of the Company and of all
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Guarantor hereby waives and relinquishes any duty on the
part of Polyphase to disclose any matter, fact or thing relating to the
business, operations or conditions of the Company now known or hereafter
known by Polyphase.
1.10 Rights Cumulative. The rights, powers and remedies given to Polyphase
-----------------
by thus Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Polyphase by
virtue of any statute or rule of law or in the Master Loan Agreement or
Note or any agreement between Guarantor and Polyphase or between the
Company and Polyphase. Any forbearance or failure to exercise, and any
delay by Polyphase in exercising, any right, power or remedy hereunder
shall not impair any such right, power or remedy or be construed to be a
waiver thereof, nor shall it preclude the further exercise of any such
right, power or remedy.
1.11 Bankruptcy; Post-Petition Interest; Reinstatement of Guaranty.
-------------------------------------------------------------
(a) So long as any Guaranteed Obligations remain outstanding, Guarantor
shall not, without the prior written consent of Polyphase in accordance
with the terms of the Master Loan Agreement or Note, commence or join
with any other person or entity in commencing any bankruptcy,
reorganization or insolvency proceedings of or against the Company. The
obligations of Guarantor under this Guaranty shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of
the Company or by any defense which the Company may have by reason of
the order, decree or decision of any court or administrative body
resulting from any such proceeding.
(b) Guarantor acknowledges and agrees that any interest on any portion of
the Guaranteed Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if said
proceedings had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantor and Polyphase that
the Guaranteed Obligations which are guaranteed by Guarantor pursuant to
this Guaranty should be determined without regard to any rule of law or
order which may relieve the Company of any portion of such Guaranteed
Obligations.
5
Guarantor will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to
pay Polyphase, or allow the claim of Polyphase in respect of, any such
interest accruing after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are
paid by the Company, the obligations of Guarantor hereunder shall
continue and remain in full force and effect or be reinstated, as the
case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from Polyphase as a
preference, fraudulent transfer or otherwise, and any such payments
which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes under this Guaranty.
1.12 Notice of Events. As soon as Guarantor obtains knowledge thereof,
----------------
Guarantor shall give Polyphasec written notice of any condition or event
which has resulted or might reasonably be expected to result in (a) a
material adverse change in the financial condition of Guarantor or the
Company, or (b) a breach of or noncompliance with any term, condition or
covenant contained herein or in the Master Loan Agreement or Note, or in
any document delivered pursuant hereto or thereto, or (c) a material
breach of, or noncompliance with, any material term, condition or
covenant of any material contract to which Guarantor or the Company is a
party or by which Guarantor or the Company or Guarantor's or the
Company's property may be bound.
1.13 Set Off. In addition to any other rights Polyphase may have under law
or in equity, if any amount shall at any time be due and owing by
Guarantor to Polyphase under this Guaranty, Polyphase is authorized at
any time or from time to time, without notice (any such notice being
hereby expressly waived), to set off and to appropriate and to apply any
and all deposit (general or special, including but not limited to
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness of Polyphase owing to Guarantor
and any other property of Guarantor held by Polyphase to or for the
credit or for the account of Guarantor against and on account of the
Guaranteed Obligations and liabilities of Guarantor to Polyphase under
this Guaranty.
SECTION 2. Representations and Warranties.
------------------------------
In order to induce Polyphase to accept this Guaranty, Guarantor hereby
represents and warrants to Polyphase that the following statements are true and
correct:
2.1 Power; Authorization; Enforceable Obligations. Guarantor has the power,
---------------------------------------------
authority and legal right to execute, deliver and perform this Guaranty
and the Security Agreement.
2.2. No Legal Bar to this Guaranty. The execution, delivery and performance
-----------------------------
of this Guaranty and the Security Agreement, and the documents or
instruments required in connection therewith, and the use of the
proceeds of the borrowings under the Master Loan Agreement or Note, will
not violate any provision of any existing law or regulation binding on
Guarantor, or any order, judgment, award or decree of any court
arbitrator or governmental authority binding on Guarantor, or any
mortgage, indenture, lease contract or other agreement, instrument or
undertaking to which Guarantor is a party or by which Guarantor or any
of its assets may be bound, and will not result in, or require, the
creation or imposition of any lien on any of its property, assets or
revenues pursuant to the provisions of any such mortgage, indenture,
lease, contract or other agreement, instrument or undertaking.
6
SECTION 3. Covenants.
---------
Guarantor covenants and agrees that, unless and until all of the Guaranteed
Obligations shall have been paid in full:
3.1 Compliance with Laws, Etc. Guarantor shall comply in all material
-------------------------
respects with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, paying when due all taxes,
assessments and governmental charges imposed upon it or upon any of its
properties or assets or in respect of any of its franchises, businesses,
income or property before any penalty or interest accrues thereon;
provided that Guarantor shall in any event pay such taxes, assessments
-------- ----
and governmental charges no later than five (5) days prior to the date
of any proposed sale under any judgment, writ or warrant of attachment
entered or filed against Guarantor as a result of the failure to make
such payment.
SECTION 4. Miscellaneous.
-------------
4.1 Survival of Warranties. All agreements, representations and warranties
----------------------
made herein shall survive the execution and delivery of this Guaranty
and the execution and delivery of the Note.
4.2 Notices. Any communications between Polyphase and Guarantor and any
-------
notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by facsimile transmission to each such
party at its address set forth on the signature pages hereof or to such
other addresses as each such party may in writing hereafter indicate.
Any notice, request or demand to or upon Polyphase or Guarantor shall
not be effective until received.
4.3 Severability. In case any provision in or obligation under this
------------
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
4.4 Amendments and Waivers. No amendment, modification, termination, or
----------------------
waiver of any provision of this Guaranty, or consent to any departure by
Guarantor therefrom, shall in any event be effective without the written
concurrence of Polyphase, except as otherwise specifically provided
herein; provided, however, that no amendment. Waiver or consent shall,
-------- -------
unless in writing and signed by Polyphase , (a) limit the liability of
Guarantor hereunder, or (b) postpone any day fixed for payment
hereunder, except as otherwise specifically provided herein. Any waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which it was given.
4.5 Headings. Section and subsection headings in this Guaranty are included
--------
herein for convenience of reference only and shall not constitute a part
of this Guaranty for any other purpose or be given any substantive
effect.
4.6 Applicable Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
--------------
GUARANTOR AND PLY HEREUNDER AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED
TO BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE.
7
4.7 Successors and Assigns. This Guaranty is a continuing guaranty and
----------------------
shall be binding upon Guarantor and its successors and assigns. This
Guaranty shall inure to the benefit of Polyphase and its successors and
assigns . Guarantor shall not assign this Guaranty or any of the rights
or obligations of Guarantor hereunder without the prior written consent
of Polyphase. The terms and provisions of this Guaranty shall inure to
the benefit of any assignee or transferee of the Master Loan Agreement
or Note, and in the event of such transfer or assignment the rights and
privileges herein conferred upon Polyphase shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
4.8 Consent to Jurisdiction and Service of Process. ALL JUDICIAL PROCEEDINGS
----------------------------------------------
BROUGHT AGAINST GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY OR
THE SECURITY AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION LOCATED WITHIN THE COUNTY OF DALLAS, STATE OF
TEXAS AND BY EXECUTION AND DELIVERY OF THIS GUARANTY AND THE SECURITY
AGREEMENT GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS GUARANTY OR THE PLEDGE AGREEMENT.
4.9 Waiver of Trial by Jury. GUARANTOR, AND BY ITS ACCEPTANCE OF THE
-----------------------
BENEFITS HEREOF, POLYPHASE HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS GUARANTY OR THE SECURITY AGREEMENT. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims,
breach of duty claims and all other common law and statutory claims.
Guarantor, and, by its acceptance of the benefits hereof, Polyphase (a)
acknowledges that this waiver is a material inducement for Guarantor and
Polyphase to enter into a business relationship, that Guarantor and
Polyphase have already relied on this waiver in entering into this
Guaranty and the Security Agreement or accepting the benefits thereof,
as the case may be, and that each will continue to rely on this waiver
in their related future dealings and (b) further warrants and represents
that each has reviewed this waiver with its legal counsel, and that each
knowingly and voluntarily waives its jury trial rights following
consultation with its legal counsel. THIS WAIVER IS IRREVOCABLE, AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND THE SECURITY
AGREEMENT. In the event of litigation, this Guaranty may be filed as a
written consent to a trial by the court.
4.10 ENTIRE AGREEMENT. THIS AGREEMENT AND THE SECURITY AGREEMENT (AND THE
OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH AND
THEREWITH) EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT
MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF
THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES HERETO. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement
8
or modify any terms of this Guaranty. There are no conditions to the
full effectiveness of this Guaranty.
4.11 Further Assurances. At any time or from time to time, upon the request
of Polyphase, Guarantor shall execute and deliver such further documents
and do such other acts and things and Polyphase may reasonably request
in order to effect fully the purposes of this Guaranty.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
------------------------------
Xxxx X. Xxxxxx
Address:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
ACCEPTED AT DALLAS, TEXAS:
POLYPHASE CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
9
