Exhibit 10.2
LEASE GUARANTY
THIS GUARANTY entered into effective January 31, 1997, by PSW Technologies,
Inc., a Delaware corporation (hereinafter referred to as the "Guarantor") in
favor of Pencom Systems Incorporated, a Delaware corporation (hereinafter
referred to as the "Sublessor"):
1. RECITALS.
1.1 Landmark Associates of Xxxxxx XX, a Texas limited partnership
("Landlord"), as landlord, and Sublessor, as tenant therein, entered into a
lease dated March 28, 1990 (the "Lease") for office space in the building
located at 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 (the
"Building"). The Lease was amended by First Amendment of Lease Contract ("First
Amendment") dated June 11, 1990, by Second Amendment of Lease Contract ("Second
Amendment") dated December 5, 1990, and by a Third Amendment of Lease Contract
("Third Amendment") dated July 17, 1991; by a Fourth Amendment of Lease Contract
("Fourth Amendment") dated February 20, 1992; by a Fifth Amendment of Lease
Contract ("Fifth Amendment") dated January 27, 1993; by a Sixth Amendment of
Lease Contract ("Sixth Amendment") dated February 7, 1995; by a Seventh
Amendment of Lease Contract ("Seventh Amendment") dated December 14, 1995; and
by an Eighth Amendment of Lease Contract ("Eighth Amendment") dated February 4,
1997; As used herein, the term "Master Lease" is defined to include the Lease
and the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth
Amendments.
1.2 Guarantor occupies and has previously agreed to assume responsibility
for 21,371 rentable square feet (the "Sublease Premises") out of the total area
covered by the Master Lease, which Sublease Premises are more particularly
described on the floor plan attached to the Sublease as Exhibit "A". Guarantor
has now relocated its offices from the Sublease Premises to a new location but
has made arrangements to have the Sublease Premises subleased from Sublessor by
Tivoli Systems Subsidiary, Inc. (hereinafter referred to as "Sublessee").
1.3 Sublessor has agreed to sublease the Sublease Premises to Sublessee,
and Sublessee desires to sublease the Sublease Premises from Sublessor, all in
accordance with the provisions of this Sublease.
1.4 Sublessor is not willing to sublease the Sublease Premises to
Sublessee unless the Guarantor unconditionally guarantees payment of all rent
and unconditionally guarantees the performance of all other obligations of
Sublessee contained in the Sublease.
NOW THEREFORE, as a necessary inducement to Sublessor to lease the Sublease
Premise to Sublessee and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and confessed, the Guarantor
hereby agrees, represents and warrants as follows:
1. Guaranty Obligation. The Guarantor hereby irrevocably and unconditionally
guarantees to the Sublessor and its successors and assigns, the due and punctual
payment of financial obligations and performance of all other obligations of the
Sublessee imposed in the Sublease now or hereafter arising hereunder.
2. The Guaranteed Obligations. As used herein, the term "Guaranteed
Obligations" shall mean:
(a) All rent, reasonable attorney's fees, deposits, liabilities for costs
and expenses and other obligations and liabilities of the Sublessee to the
Sublessor at any time arising, whether by termination of the Sublease, lapse of
time or otherwise, under the Sublease; and,
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(b) Any and all other liabilities, obligations and duties of every kind or
character, that are now or at any time or times hereafter may be or become owing
from the Sublessee to the Sublessor, howsoever evidenced, whether due or to
become due, whether by lapse of time or otherwise, termination of the Sublease
or otherwise, together with any and all renewals, amendments, and extensions of
any thereof; and,
(c) All costs, expenses and fees, including without limitation, court
costs and attorney's fees, arising in connection with the collection of any and
all amounts, obligations and liabilities of the Sublessee to the Sublessor
whether collection or performance is sought by suit, through bankruptcy
proceedings or through any other judicial proceeding or by any other formal or
informal procedures, as well as any other costs incurred by the Sublessor in
enforcing or protecting any of the Sublessor's rights, remedies or recourses
hereunder.
3. No Limitation. It is understood that the enumeration of specific types of
obligations herein is made for purposes of illustration only and shall not be
constructed as a limitation upon the obligations included in the definition of
Guaranteed Obligations and which are guaranteed hereby.
4. Nature Of Guaranty. It is specifically agreed that:
(a) This Guaranty is a continuing, unconditional irrevocable guaranty
of payment and not a guaranty of collection;
(b) This Guaranty may not be revoked by Guarantor and shall continue
to be effective with respect to the Guaranteed Obligations
arising or created after any attempted revocation by Guarantor
and shall be binding upon the Guarantor and the respective legal
representatives, executors, administrators and successors of the
Guarantor; and
(c) If the Guarantor becomes liable for any Guaranteed Obligations
owing by the Sublessee to the Sublessor, by endorsement or
otherwise than under this Guaranty, such liability shall not be
in any manner impaired or reduced hereby but shall have all and
the same force and effect it would have had if this Guaranty had
not existed.
5. Exoneration Of Sublessor. Guarantor specifically agrees that Guarantor
shall not have any recourse or action against Sublessor by reason of any action
the Sublessor may take or omit to take with respect to the Guaranteed
Obligations, or this Guaranty, including but not limited to the collection of
any sums mentioned therein, or in connection with any security or other guaranty
now or hereafter existing therefor.
6. Waiver Of Notices And Acceptance. The Guarantor specifically waives notice
of (i) acceptance of this guaranty by the Sublessor, (ii) any extension,
modification or renewal of the Sublease of the Guaranteed Obligations, (iii) any
indulgences allowed by Sublessor with respect to the Sublease or the Guaranteed
Obligations, this Guaranty or any part or parts thereof or any nonpayment, non
performance, breach or default thereon, (iv) eviction; (v) any other grace,
demand, protest, presentment, and notice of demand, (vi) the amount or nature of
the Guaranteed Obligations outstanding at any time, and (vii) generally all
other notices of every kind in connection with the provisions of this Guaranty
and any other documents or agreements evidencing or relating to the Guaranteed
Obligations.
7. Payments. All payments made upon or performance of the Guaranteed
Obligations at any time shall be deemed to have been paid or performed by the
Sublessee unless express written notice is given to the Sublessor at the time of
payment or performance by the Guarantor that such payment is paid by said
Guarantor.
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8. Payment By Guarantor. In each event whenever any of the Guaranteed
Obligations shall become due and remain unpaid or any other Guaranteed
Obligations become performable and remain unperformed, the Guarantor shall, upon
demand, pay the amount due thereon to the Sublessor or perform such unperformed
Guaranteed Obligations, without notice having been given to Guarantor previous
to such demand of the acceptance by the Sublessor of this Guaranty or of the
creating or incurring of such obligation, and without presentment, protest,
notice of protest, notice of non-payment, or any other notice whatsoever.
9. Place Of Payment. All amounts becoming payable by Guarantor to the
Sublessor under this Guaranty shall be payable at the Sublessor's principal
place of business in the City of Xxxxxx, Xxxxxx County, Texas.
10. Application Of Security, Proceeds. Guarantor expressly waives any right to
the benefit of or to require or control application of any security or property
or the proceeds of any security or property now existing or hereafter obtained
by the Sublessor as security for the Guaranteed Obligations, or any part
thereof, and agrees that the sublessor shall have no duty insofar as the
Guarantor is concerned to apply upon any of the Guaranteed Obligations any
monies, payments or other property at any time received by or paid to or in the
possession of the sublessor, expect as the Sublessor shall determine in its sole
discretion.
11. Effect of Bankruptcy. This Guaranty shall continue to be effective or
reinstated, as the case may be, if at any time any payment to the Sublessor of
all or part of the Guaranteed Obligations are rescinded or must otherwise be
restored or refunded by the Sublessor pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief proceeding involving the
Sublessee. In the event that the Sublessor must rescind or restore any payment
received by the Sublessor in satisfaction of any of the Guaranteed Obligations
as set forth herein, any prior release or discharge under the terms of this
Guaranty given to any Guarantor by the sublessor shall be without effect, an
this Guaranty shall remain in full force and effect.
12. No Duty to Pursue Others. The Guarantor agrees:
(a) that it shall not be necessary or required that the Sublessor
(and the Guarantor hereby waives any rights which it may have to so
require Sublessor), in order to enforce any obligations under this
Guaranty, must first (i) make demand for payment upon the Sublessee or
any other person liable on the Guaranteed Obligations or present same
for payment thereto or make protest or give notice thereto of the
nonperformance or non-payment thereof; (ii) proceed to obtain or
assert a claim for personal judgment or otherwise institute suit or
exhaust its remedies against Sublessee, others liable on the
Guaranteed Obligations or any other person, (iii) assert or institute
claim or suit against the assets or estate of the Sublessee, or others
liable on the Guaranteed Obligations, (iv) enforce its rights against
any security which shall ever have been given to secure the Guaranteed
Obligations, (v) join Sublessee or any others liable on the Guaranteed
Obligations in any action seeking to enforce this Guaranty, or (vi)
resort to any other means to obtaining payment of the Guaranteed
Obligations; and,
(b) that Sublessor shall not be required to mitigate damages or take
any other action to reduce, collect or enforce the Guaranteed
Obligations.
13. Discharge of Obligations. Guarantor agrees that the fact that at any time
or from time to time the Guaranteed Obligations may be increased, reduced or
fully discharged shall not release, discharge or reduce the obligations of the
Guarantor with respect to any obligations thereafter incurred in connection with
the Guaranteed Obligations. It is the intention of the Sublessor and Guarantor
that Guarantor's obligations hereunder shall not be discharged except by
Guarantor's performance of such obligations and then only to the extent of such
performance, unless
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otherwise expressly agreed in writing by Sublessor or as might otherwise be
provided in this Guaranty.
14. Rights of Sublessor. The Guarantor agrees that the rights of the Sublessor
and any of the obligations and liabilities of the Guarantor created hereunder
shall not in any manner whatsoever be reduced, discharged, diminished, impaired
or affected by any or more of the events, circumstances or occurrences described
in paragraphs a through e inclusive.
(a) Extensions, Modifications and Adjustments. Any renewal,
extension, modification, alteration or any indulgence, delay,
adjustment, forbearance or compromise that might be granted or given
by Sublessor to the Sublessee or the Guarantor with respect to the
Guaranteed Obligations (including but not limited to any maturity(ies)
thereof) or any part or parts hereof, or any other agreement, contract
or instrument between Sublessee and Sublessor or any other person or
party, pertaining to the Guaranteed Obligations; or,
(b) Release of Obligors. Any full or partial release of the
Sublessee or any other person or entity now or hereafter liable,
whether primarily or secondarily, jointly and/or severally, to pay,
perform or guarantee payment of the Guaranteed Obligations or any part
thereof, it being acknowledged and agreed by Guarantor that Guarantor
may be required to pay the Guaranteed Obligations in full without the
support or assistance of any other party, and Guarantor has not been
induced to enter into this Guaranty on the basis of a belief,
understanding or agreement that other parties will at all times be
liable to perform the Guaranteed Obligations, or that Sublessor will
look to other parties to perform the Guaranteed Obligations; or
(c) Other Security. The taking or accepting of any other security,
collateral or guaranty or other assurance of payment, for all or any
part of the Guaranteed Obligations; or
(d) Invalidity of the Guaranteed Obligations. The invalidity,
illegality or unenforceabilty of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection
therewith, for any reason whatsoever, including without limitation,
the fact(s) that,
(i) the act of creating or guaranteeing the Guaranteed
Obligations or any part thereof, is ultra xxxxx,
(ii) the officers, agents, attorneys-in-fact or other
representatives creating or guaranteeing the Guaranteed
Obligations or any part thereof, acted without any or
in excess of their authority,
(iii) the Sublease or any document, instrument or agreement
pertaining to the Guaranteed Obligations have been
forged or otherwise are irregular or not genuine or
authentic,
(iv) any other facts which for any other reason would render
the Guaranteed Obligations unenforceable or
uncollectible against the Sublessee; or
(e) Condition of Sublessee or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of Sublessee or any other party at any
time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of Sublessee or Guarantor; or any
sale, lease or transfer of any or all of the assets of Sublessee or
Guarantor; or any reorganization or
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reincorporation of Sublessee or Guarantor (even though rendering the
Guaranteed Obligations or any part or parts thereof void or
uncollectible as against the Sublessee).
15. Guarantor's Rights of Contribution and Subrogation. It is expressly agreed
and acknowledged that Guarantor has not and does not hereby waive or release
(expressly or impliedly) any rights of subrogation, reimbursement, or
contribution which it may have after payment in full of the Guaranteed
Obligations against others who are liable for or have also guaranteed the
Guaranteed Obligations or any part thereof, or as against any collateral or
property or security held by any person or party in order to secure the
Guaranteed Obligations or any part thereof; provided, however, that Guarantor's
rights of subrogation and reimbursement are and shall be subordinate to the
rights and claims of the Sublessor and all of the Guaranteed Obligations shall
be paid in full before Guarantor shall receive payment or performance of any
sums due Guarantor under the provisions hereof.
16. Guarantor's Representations, Warranties and Covenants. To induce Sublessor
to enter into the Sublease with the Sublessee, the Guarantor represents,
warrants and agrees that:
(a) Benefit. Guarantor has received, or will receive, direct or indirect
benefit from the Sublessor entering into the Sublease with Sublessee and the
making of this Guaranty. Specifically, but not by way of limitation, Guarantor
represents that Sublessee has previously been a division of Guarantor, that
Guarantor and Sublessee continue to share key employees, that Guarantor and
Sublessee have similar business interests and business relationships, and that
Sublessee's ability to enter into the Sublease affords Sublessee the opportunity
for continued growth and success which will provide substantial economic and
practical benefits to Guarantor.
(b) No Representation by Creditor. Neither Sublessor nor any other party
has made any representation, warranty or statement to the Guarantor in order to
induce the Guarantor to execute this Guaranty.
(c) Guarantor's Financial Condition. As of the date hereof, and after
giving effect to this Guaranty and the contingent obligations evidenced hereby,
Guarantor is, and will be, solvent, and has and will have assets which, fairly
valued, exceed its obligations, liabilities and debts, and has and will have
property and assets in the State of Texas sufficient to satisfy and repay its
obligations and liabilities.
17. Transfer or Assignment by Sublessor. This Guaranty is intended for and
shall inure to the benefit of the Sublessor, its successors or assigns, and
each and every other person who shall from time to time be or become the owner
of the property that is the subject of the Sublease.
18. Transfer or Assignment by Guarantor. It is hereby agreed that Guarantor
may not, without the express prior written consent of Sublessor acknowledged by
an officer thereof, transfer or assign any of its rights, powers, duties or
obligations thereunder.
19. Waiver. No failure to exercise, and no delay in exercising, on the part of
Sublessor, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any other right. The rights of Sublessor
hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent or
waiver shall extend beyond the particular case and purpose involved. No notice
or demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
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20. Release of Guaranty. This Guaranty will be canceled, shall become null and
void, and returned to Guarantor when Sublessee completely satisfies its
financial obligations and completes the performance of all other obligations of
the Sublessee imposed under the Sublease.
21. Notices. It is agreed that:
(a) Any notice or demand to the Guarantor hereunder or in connection
herewith may be given and shall conclusively be deemed and considered to have
been given and received upon the third day after the deposit thereof, in
writing, in the United States mail, duly stamped and addressed to the Guarantor
at the address of the Guarantor as shown below (whether actually received or
not), but actual notice, however given or received, shall always be effective.
The last preceding sentence shall not be construed in anyway to affect or impair
any waiver of notice or demand herein provided or to require giving of notice or
demand to or upon the Guarantor in any situation or for any reason.
Guarantor: PSW Technologies, Inc.
Attention: Xxxxx Xxxx
0000 Xxxxxxxxxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Sublessor: Pencom Systems, Incorporated
Attention: Xxxxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) Any notice which Guarantor may or shall give to the Sublessor shall be
personally delivered or mailed by prepaid certified or registered mail, return
receipt requested, delivery restricted to addressee only at the address of the
Sublessor or shown above.
(c) In the event that Sublessor or Guarantor changes its mailing address,
notice shall be given to the other party in the manner described in (a) and (b)
of this paragraph 21.
22. Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall, to the extent permitted by law,
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision.
23. Governing Law, Jurisdiction. The substantive laws of the State of Texas
shall govern the validity, construction, enforcement and interpretation of this
Guaranty. For purposes of this Guaranty and the resolution of disputes
hereunder, Guarantor hereby irrevocably submits and consents to, and waives any
objection to, the non-exclusive jurisdiction of the state and federal courts
located in Xxxxxx County, Texas.
24. Numerical and Personal References. As used herein and when required by the
context, each number (singular and plural) shall include all numbers, and each
gender shall include all genders, and unless the context otherwise requires the
word "person" of "party" shall include "person, corporation, firm, partnership,
joint venture or association."
25. Headings. Section headings are for convenience of reference only and shall
in no way affect the interpretation of this Guaranty.
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26. Rights and Remedies. The exercise by Sublessor of any right or remedy
hereunder or under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
PSW TECHNOLOGIES, INC.
By: /s/ W. Xxxxx Xxxx, President
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Xxxxx Xxxx, President
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