GUARANTY
(By Corporation)
TO: IBM CREDIT CORPORATION DATE August 23, 2000
---------------
0000 XxxxxXxxx Xxxx.
Xxxxxxx, XX 00000
Gentlemen:
In consideration of credit and financing accommodations granted or to be granted
by you to PWR Systems, Inc. ("Dealer"), which is in the best interest of the
undersigned, and for other good and valuable consideration received, the
undersigned guaranties to you the prompt and unconditional performance and
payment by Dealer of any and all obligations, liabilities, contracts, mortgages,
notes, trust receipts, secured transactions, inventory financing and security
agreements, and commercial paper on which Dealer is in any manner obligated,
heretofore, now, and hereafter owned, contracted or acquired by you
("Liabilities"), whether the Liabilities are individual, joint, several,
primary, secondary, direct, contingent or otherwise. The undersigned also agrees
to indemnify you and hold you harmless against any losses you may sustain and
expenses you may incur, suffer or be liable for as a result of or in any way
arising out of, following, or consequential to any transactions with or for the
benefit of Dealer.
If Dealer fails to pay or perform any Liabilities to you when due, all
Liabilities to you shall then be deemed to have become immediately due and
payable, and the undersigned shall then pay upon demand the full amount of all
sums owed to you by Dealer, together with all expenses, including reasonable
attorney's fees, which shall be deemed to be not less than fifteen percent of
the debt or the amount legally permitted if placed with an attorney for
collection.
The liability of the undersigned is direct and unconditional and shall not be
affected by any extension, renewal or other change in the terms of payment of
any security agreement or any other agreement between you and Dealer, or any
change in the manner, place or terms of payment or performance thereof, or the
release, settlement or compromise of or with any party liable for the payment or
performance thereof, the release or non-perfection of any security thereunder,
any change in Dealer's financial condition, or the interruption of business
relations between you and Dealer. This Guaranty shall continue for so long as
any sums owing to you by Dealer remain outstanding and unpaid, unless terminated
in the manner provided below. The undersigned acknowledges that its obligations
hereunder are in addition to and independent of any agreement or transaction
between you and Dealer or any other person creating or reserving any lien,
encumbrance or security interest in any property of Dealer or any other person
as security for any obligation of Dealer. You need not exhaust your rights or
recourse against Dealer or any other person or any security you may have at any
time before being entitled to payment from the undersigned.
This Guaranty is assignable, shall be construed liberally in your favor, and
shall inure to the benefit of and bind your and our respective successors,
personal representatives and assigns, and also benefit any of your existing or
future affiliates that may extend credit to Dealer.
If Dealer hereafter is incorporated, acquired by a corporation, dissolved, or
otherwise undergoes any change in its management, ownership, identity or
organizational structure, this Guaranty shall continue to extend to any
Liabilities of the Dealer or such resulting corporation, dissolved corporation,
or new or changed legal entity or identity to you.
The undersigned waives: notice of the acceptance of this Guaranty, and of
presentment, demand and protest; notices of nonpayment, nonperformance, any
right of contribution from other guarantors, and dishonor; notices of amount of
indebtedness of Dealer outstanding at any time; notices of the number and amount
of advances made by you to Dealer in reliance on this Guaranty; notices of any
legal proceedings against Dealer; notices and hearing as to any prejudgment
remedies; and any other demands and notices required by law. The undersigned
further waives all rights of set-off and all counterclaims against you or
Dealer. The undersigned also waives any and all rights and notices or demands
relating to any collateral now or hereafter securing any of the Liabilities,
including, but not limited to, all rights, notices or demands relating, whether
directly or indirectly, to the sale or other disposition of any or all of such
collateral or the manner of such sale or other disposition. All waivers by the
undersigned herein shall survive any termination or revocation of this Guaranty.
The undersigned authorizes you to sell at public or private sale or otherwise
realize upon the collateral now or hereafter securing any of the Liabilities, in
such manner and upon such terms and conditions as you deem best, all without
advertisement or notice to Dealer, the undersigned, or any third parties. The
undersigned further authorizes you to deal with the proceeds of such collateral
as provided in your agreement with Dealer, without prejudice to your claim for
any deficiency and free from any right or redemption on the part of Dealer, the
undersigned or any third parties, which right or redemption is hereby waived
together with every formality prescribed by custom or by law in relation to any
such sale or other realization.
The undersigned further agrees that all of its right, title and interest in, to
and under any loans, notes, debts and all other liabilities and obligations
whatsoever owed by Dealer to the undersigned, whether heretofore or hereafter
created or incurred and for whatever amount, and all security therefor, shall be
now and hereafter at all times fully subordinated to all Liabilities. The
undersigned will not ask, demand or xxx for, or take or receive payment of, all
or any part of such loans, notes, debts or any other liabilities or obligations
whatsoever or any security therefor, until and unless all of the Liabilities are
paid, performed and fully satisfied.
The undersigned has made an independent investigation of the financial condition
of Dealer and gives this Guaranty based on that investigation and not upon any
representations made by you. The undersigned acknowledges that it has access to
current and future Dealer financial information which will enable the
undersigned to continuously remain informed of Dealer's financial condition. The
undersigned also consents to and agrees that the obligations under this Guaranty
shall not be affected by your: subsequent increases or decreases in the credit
line that you may grant to Dealer; substitutions, exchanges or releases of all
or any part of the collateral now or hereafter securing any of the Liabilities;
sales or other dispositions of any or all of the collateral now or hereafter
securing any of the Liabilities without demands, advertisement or notice of the
time or place of the sales or other dispositions; realizing on the collateral to
the extent you, in your sole discretion, deem proper; or purchases of all or any
part of the collateral for your own account.
This Guaranty and any and all obligations, liabilities, terms and provisions
herein shall survive any and all bankruptcy or insolvency proceedings, actions
and/or claims brought by or against the Dealer, whether such proceedings,
actions and/or claims are federal and/or state.
This Guaranty is submitted by the undersigned to you (for your acceptance or
rejection thereof) at your above specified office; as an offer by the
undersigned to guaranty the credit and financial accommodations provided by you
to Dealer. If accepted, this Guaranty shall be deemed to have been made at your
above specified office. This Guaranty and all obligations pursuant thereto,
shall be governed and controlled as to interpretation, enforcement, validity,
construction, effect and in all other respects by the laws of the state of your
above specified office. The undersigned, to induce you to accept this Guaranty,
agrees that all actions or proceedings arising directly or indirectly in
connection with, out of, related to or from this Guaranty may be litigated, at
your sole discretion and election, in courts within the state of your above
specified office. The undersigned consents and submits to the jurisdiction of
any local, state or federal court located within that state. The undersigned
waives any right to transfer or change the venue of any litigation brought
against the undersigned by you in accordance with this paragraph.
Any delay by you, or your successors, affiliates or assigns in exercising any or
all rights granted you under this Guaranty shall not operate as a wavier of
those rights. Furthermore, any failure by you, your successors, affiliates or
assigns, to exercise any or all rights granted you under this Guaranty shall not
operate as a wavier of your right to exercise any or all of them later.
This document contains the full agreement of the parties concerning the guaranty
of Dealer's Liabilities and can be varied only by a document signed by all the
parties hereto. The undersigned may terminate this Guaranty by notice to you in
writing, the termination to be effective sixty (60) days after receipt and
acknowledgment thereof by you, but the termination shall in no manner terminate
the undersigned guaranty of Liabilities arising prior to the effective date of
termination.
WE AGREE THAT ANY ACTION, SUIT OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO
THIS GUARANTY OR THE RELATIONSHIP BETWEEN YOU AND US, WILL BE TRIED IN A COURT
OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. THUS, WE HEREBY WAIVE ANY
RIGHT TO A JURY TRIAL IN ANY SUCH ACTION, SUIT OR PROCEEDING.
WITNESS:
/s/ J. Xxxxxxx Xxxxxxxxx VIZACOM INC.
------------------------ ------------
(Name of Corporate Guarantor)
(Print Name J. Xxxxxxx Xxxxxxxxx) By: /s/ Xxxx X. Xxxxxxxxx
--------------------- ---------------------
Address: Glenpointe Centre East (Print Name Xxxx X. Xxxxxxxxx)
---------------------- ------------------
000 Xxxxx X. Xxxx Xxxx., 0xx Xxxxx Guarantor's Address:
----------------------------------
Xxxxxxx, XX 00000 Glenpointe Centre East
000 Xxxxx X. Xxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
(SEAL) ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
(Assistant Secretary)
(Print Name Xxxxxx X. Xxxxxxxxxx)
---------------------
