GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of June 2, 2000 made by Taconic Data
Corp., a New York corporation (the "GUARANTOR"), in favor of ComVest Capital
Management LLC, a Delaware limited liability question (the "OBLIGEE").
WHEREAS, XxxxxxxXxxxx.xxx, Inc., a Delaware corporation (the
"COMPANY"), and the Obligee have entered into a letter agreement (the
"COMMITMENT LETTER," and terms defined therein and not otherwise defined herein
are used herein as so defined) of even date herewith;
WHEREAS, pursuant to the Commitment Letter, the Company intends to
execute and deliver one or more promissory notes, (each a "NOTE", and
collectively the "NOTES") in favor of the Obligee to evidence the Loan;
WHEREAS, the Company intends to repay the Notes in whole at the
Maturity Date, or prepay the Notes pursuant to the terms therein;
WHEREAS, to induce the Obligee to enter into the Commitment Letter
and to make available to the Company the Loan, the Guarantor has agreed to
guarantee payment by the Company of the Loan.
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, the punctual payment
when due, of the Loan and all other payment obligations arising under or in
respect of the Notes held by the Obligee, whether for principal, interest
(including without limitation interest on any overdue principal, premium and
interest on such Note at the rate specified in such Note and interest accruing
or becoming owing both prior to and subsequent to the commencement of any
proceeding against or with respect to the Company under any chapter of the
Bankruptcy Code of 1978, 11 U.S.C. ss.101 et seq., any successor statute thereto
or any similar state law), fees, expenses, indemnification or otherwise (all
such obligations so guaranteed are called the "GUARANTEED OBLIGATIONS"). The
Guarantor's guarantee of the Guaranteed Obligations hereunder are secured by
collateral of the Guarantor as set forth in a General Security Agreement of even
date herewith by and between the Guarantor and the Obligee.
The Guarantor also agrees to pay, in addition to the amount stated
above, any and all reasonable expenses (including reasonable counsel fees and
expenses) incurred by the Obligee in enforcing any rights under this Guarantee
Agreement or in connection with any amendment of this Guarantee Agreement.
SECTION 2. Guarantee Absolute. The obligations of the Guarantor
under Section 1 of this Guarantee Agreement constitute a present and continuing
guaranty of payment
and not of collectibility and the Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Notes and
the Commitment Letter, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Obligee with respect thereto. The liability of the Guarantor under
this Guarantee Agreement shall be primary, absolute, irrevocable, and
unconditional irrespective of any circumstance that might otherwise constitute a
defense, offset or counterclaim available to, or a discharge of, the Company or
the Guarantor.
This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by the
Obligee, or any other person or entity upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably waives, to
the extent permitted by applicable law:
A. promptness, diligence, presentment, notice of acceptance and
any other notice with respect to any of the Guaranteed Obligations and
this Guarantee Agreement;
B. any defense, offset or counterclaim arising by reason of any
claim or defense based upon any action by the Obligee; and
C. any rights by which it might be entitled to require suit on
an accrued right of action in respect of any of the Guaranteed Obligations
or require suit against the Company or any other person or entity.
SECTION 4. Waiver of Subrogation. The Guarantor shall not assert,
enforce, or otherwise exercise any right of subrogation to any of the rights,
remedies, powers, privileges or liens of the Obligee or any other beneficiary
against the Company on the Guaranteed Obligations until such time as the
Guaranteed Obligations have been paid in full.
SECTION 5. Modification of Notes. Notwithstanding any modification,
waiver, or other change in the terms or conditions of any Note or the Loan, this
Guarantee Agreement by its terms shall remain in full force and effect.
SECTION 6. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
A. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The execution, delivery and performance of this Guarantee
Agreement have been duly authorized by all necessary action on the part
of the Guarantor.
B. The execution, delivery and performance by the Guarantor of
this Guarantee Agreement will not (i) contravene, result in any breach of,
or constitute a default under,
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or result in the creation of any Lien in respect of any property of the
Guarantor under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other
material agreement or instrument to which the Guarantor is bound or by
which the Guarantor or any of its properties may be bound or affected,
(ii) conflict with or result in a breach of any of the terms, conditions
or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or governmental authority applicable to the Guarantor or (iii)
violate any provision of any statute or other rule or regulation of any
governmental authority applicable to the Guarantor.
SECTION 7. Addresses for Notices. All written communications to the
Guarantor hereunder shall be delivered in person, sent by certified or
registered mail or the equivalent (with return receipt requested), or by
overnight courier or given by telex or telecopy (with answer back received),
addressed to it at the address of the Guarantor provided below its name on the
signature page of this Guarantee Agreement or at such other address as the
Guarantor may hereafter designate by notice to the Obligee.
SECTION 7. No Waiver. No failure on the part of the Obligee to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
SECTION 8. Governing Law, etc.
A. This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the
State of New York applicable to contracts made and to be performed
therein.
B. The Guarantor hereby irrevocably submits to the jurisdiction
of any New York State or federal court sitting in New York City, New York,
over any action or proceeding arising out of or relating to this Guarantee
Agreement, and the Guarantor hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in
such New York State or federal court; provided, however, nothing in
this Section 8 is intended to waive the right of the Obligee or the
Guarantor to remove any such action or proceeding commenced in any such
New York State Court to an appropriate New York federal court to the
extent the basis for such removal exists under applicable law. The
Guarantor hereby irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing by certified
mail of copies of such process to it at its address specified in
Section 6 of this Guarantee Agreement (Attention: General Counsel).
The Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
C. Nothing in this Section 8 shall affect the right of the
Obligee to serve legal process in any other manner permitted by law or
affect the right of the Obligee to bring any action or proceeding against
the Guarantor or its properties in the courts of any other jurisdiction.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
TACONIC DATA CORP.
By /s/Xxxxxxxx Deutsch
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Title:
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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