EXHIBIT 10.75
CONTINUING GUARANTY
1. FOR VALUE RECEIVED, and in consideration of any loans or
other financial accommodations heretofore or hereafter made or granted to
Intellisys Group, Inc., a Delaware corporation ("Intellisys"), X. Xxxxxxxxxxxx
Enterprises, Inc., a Texas corporation, or Proline Industries, Inc., a
Washington corporation (collectively, the "Companies") by Fleet Business Credit
Corporation (formerly known as Sanwa Business Credit Corporation and together
with its successors and assigns, "Lender"), each of the undersigned hereby
unconditionally guarantees the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, of (i) all obligations
of the Companies to Lender to repay advances made by Lender pursuant to the
Overadvance Facility (as such term is defined in the Fifth Amendment dated as of
March 31, 1999 to the Loan and Security Agreement, originally dated as of
September 3, 1998, by and between the Companies and Lender, as amended
(collectively "Loan Agreement")) now or hereafter existing or due or to become
due in an amount of up to Five Million Dollars ($5,000,000) (the "Overadvances")
plus (ii) all interest payable on the Overadvance(s) (the "Overadvance
Interest") and (iii) all expenses (including attorneys' and paralegals' fees and
expenses) paid or incurred by Lender in enforcing this Guaranty (the
"Enforcement Expenses"). The Overadvances, the Overadvance Interest and the
Enforcement Expenses are collectively referred to herein as the "Obligations").
All present and future obligations and indebtedness owing by the Companies to
Lender under or pursuant to the Loan Agreement including the Overadvance
Facility are referred to herein as the "Liabilities. " In the event of any
default by any Company in making payment of any of the Liabilities, each of the
undersigned agrees, on demand by Xxxxxx, to pay all of the Obligations as are
then or may thereafter become due and owing under the terms of the Loan
Agreement. The undersigned acknowledge and agree that in the event of a default
under the Loan Agreement, any payments made or applied against the Liabilities,
other than payments by the undersigned on the Obligations, shall first be
applied to payment of the Liabilities not constituting the Overadvance Facility
and then to the Overadvance Facility.
2. Each of the undersigned agrees that, in the event of the
dissolution or insolvency of any of the Companies or the undersigned or the
inability of any of the Companies or the undersigned to pay their respective
debts as they mature, or an assignment by any of the Companies or the
undersigned for the benefit of creditors, or the institution of any proceeding
by or against any of the Companies or the undersigned alleging that any of the
Companies or the undersigned is insolvent or unable to pay their respective
debts as they mature, the undersigned will pay to Lender forthwith the full
amount which would be payable hereunder by the undersigned if all of the
Liabilities were then due and payable, whether or not such event occurs at a
time when any of the Liabilities or the Obligations are due and payable.
3. This Guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution or insolvency of any of
the undersigned or that at any time or from time to time all of the Overadvances
may have been paid), until all of the Obligations (including any extensions or
renewals thereof) shall have been fully and finally paid. Notwithstanding the
foregoing, this Guaranty shall terminate upon occurrence of the earlier of (i)
the termination of
the Overadvance Facility and the payment in full to Lender by the undersigned of
all of the Obligations, (ii) the payment in full of the Obligations during the
90 day period following the date hereof with the proceeds from (x) Intellisys'
initial underwritten public offering of common stock or (y) a private placement
of shares of capital stock by Intellisys that results in net cash proceeds
(after deduction of fees and commissions) to Intellisys of at least $15,000,000
or (iii) July 15, 1999 on which date all outstanding Obligations shall be paid
in full by the undersigned. Upon any termination of this Guaranty, the
Overadvance Facility shall automatically terminate.
4. Each of the undersigned further agrees that, if at any time
all or any part of any payment theretofore applied by Lender to any of the
Obligations is or must be rescinded or returned by Lender for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of any of the Companies), the Obligations shall, for the purposes
of this Guaranty, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by Xxxxxx, and this Guaranty shall continue to be effective or be
reinstated, as the case may be, as to the Obligations, all as though such
application had not been made by Xxxxxx.
5. Lender may, from time to time, whether before or after any
discontinuance of this Guaranty, in its sole discretion and without notice to
the undersigned, take any or all of the following actions: (a) retain or obtain
a security interest in any property to secure any of the Liabilities, (b) retain
or obtain the primary or secondary obligation of any obligor or obligors,
including any other guarantors in addition to the undersigned, with respect to
any of the Liabilities; (c) extend or renew for one or more periods (whether or
not longer than the original period), alter or exchange any of the Liabilities;
provided that any extension of the terms of this Guaranty beyond the termination
dates provided in paragraph 3(ii) or (iii) above shall not be made without the
undersigneds' prior written consent; (d) release, waive or compromise any
obligation of any of the undersigned hereunder or any obligation of any nature
of any other obligor primarily or secondarily obligated with respect to any of
the Liabilities; (e) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property now or
hereafter securing any of the Liabilities, or, subject to subsection 5(c) above,
extend or renew for one or more periods (whether or not longer than the original
period) or release, waive, compromise, alter or exchange any obligations of any
nature of any obligor with respect to any property; and (f) resort to the
undersigned for payment of any of the Obligations, whether or not Lender shall
have resorted to any property securing any of the Liabilities or shall have
proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities.
6. Notwithstanding any payments made by or for the account of
any of the undersigned pursuant to this Guaranty, the undersigned shall have no
right of subrogation, reimbursement, exoneration, indemnity, contribution or any
other rights that would result in any of the undersigned being deemed a
creditor, under the Federal Bankruptcy Code or any other law or for any other
purpose, of any of the Companies or any other person directly or contingently
liable for the obligations guaranteed hereunder and each of the undersigned
hereby irrevocably waives all such rights, the right to assert any such rights
and any right to enforce any remedy
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which Lender now or may hereafter have against any of the Companies and hereby
irrevocably waives any benefit of and any right to participate in, any security
now or hereafter held by Xxxxxx, whether any of the foregoing rights arise in
equity, at law or by contract. Each of the undersigned further agrees that
nothing contained herein or otherwise shall prevent Lender from pursuing
concurrently or successively all rights and remedies available to it at law
and/or in equity or under any of the documents evidencing the Liabilities and
the exercise of any of its rights or remedies shall not constitute a discharge
of the undersigned's obligations hereunder, it being the purpose and intent of
each of the undersigned that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances whatsoever.
7. Each of the undersigned hereby expressly waives: (a) notice
of the acceptance by Lender of this Guaranty; (b) notice of the existence or
creation or non-payment of all or any of the Liabilities; (c) presentment,
demand, notice of dishonor, protest, notice of protest and all other notices
whatsoever; (d) any defense, right of set-off or other claim which the
undersigned may have against any of the Companies or which the undersigned or
any of the Companies may have against Lender; (e) all diligence in collection or
protection of or realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing; (f) any
requirement of Lender to marshal; and (g) any failure by Xxxxxx to inform the
undersigned of any facts Lender may now or hereafter know about any of the
Companies and the Liabilities, it being understood and agreed that Xxxxxx has no
duty so to inform and that each of the undersigned is fully responsible for
being and remaining informed by any of the Companies of all circumstances
bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Liabilities.
8. Lender may, from time to time, whether before or after any
discontinuance of this Guaranty, without notice to the undersigned, assign or
transfer any or all of the Liabilities or any interest therein and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, the Liabilities shall be and remain the Liabilities for the
purposes of this Guaranty, and each and every immediate and successive assignee
or transferee of any of -the Liabilities or of any interest therein shall, to
the extent of the interest of such assignee or transferee in the Liabilities, be
entitled to the benefits of this Guaranty to the same extent as if such assignee
or transferee were Lender; provided, however, that, unless Lender shall
otherwise consent in writing, Lender shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Guaranty,
for the benefit of Lender, as to those of the Liabilities which Xxxxxx has not
assigned or transferred; and provided further that notwithstanding any such
transfer or assignment, the undersigneds' obligations hereunder shall be limited
to the payment of the Obligations.
9. No delay in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Lender of any
right or remedy shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or waiver of any of the
provisions of this Guaranty be binding upon Lender, except as expressly set
forth in a writing duly signed and delivered by Lender. No action of Xxxxxx
permitted hereunder shall in any way affect or impair the rights of Xxxxxx and
the obligations of the undersigned under this Guaranty.
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10. This Guaranty shall be continuing and shall not be
discharged, impaired or affected by (a) the power or authority or lack thereof
of any of the Companies to incur the Liabilities; (b) the validity or invalidity
of the documents evidencing the Liabilities or securing the same; (c) any claims
or defenses whatsoever that any of the Companies or anyone else may or might
have to the payment or performance of the Liabilities; (d) the existence or non-
existence of any of the Companies as a legal entity; (e) the transfer by any of
the Companies of all or any part of the collateral described in the documents
securing the Liabilities; or (f) any right of offset, counterclaim or defense
(other than payment in full and performance in full of all of the Liabilities in
accordance with the terms of the documents evidencing and securing the
Liabilities) that each of the undersigned may or might have to its undertakings,
liabilities and obligations hereunder, each and every such defense being hereby
waived by each of the undersigned to the extent permitted by law.
11. This Guaranty shall be binding upon each of the
undersigned and upon its successors and assigns and shall inure to the benefit
of Lender and its successors and assigns. All references herein to the Company
and each of the undersigned, respectively, shall be deemed to include their
respective successors and assigns, whether immediate or remote. If more than one
party shall execute this Guaranty, the term "undersigned" as used herein shall
mean all parties executing this Guaranty and each of them, and all such parties
shall be jointly and severally obligated hereunder. All notices required or
permitted to be given hereunder shall be in writing and shall be either
personally delivered, sent by telecopier or sent by United States mail, with
first class postage prepaid, addressed, if to the undersigned at its address
stated below or at such other address as the undersigned hereafter notify Lender
as herein provided and, if to Lender at Fleet Business Credit Corporation, 00000
Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Loan
Administration Manager, telecopier number (000) 000-0000 or at such other
address as Lender hereafter notifies the undersigned as herein provided. Notices
shall be deemed received on the earlier of (i) the date when sent if sent by
telecopier, provided that such telecopied notice shall be confirmed by also
sending such notice by U.S. mail within 48 hours; (ii) if given by U.S. mail the
earlier of receipt or the third calendar day after deposit in the U.S. mail, or
(iii) the date of actual delivery, if personally delivered.
This Guaranty has been delivered for acceptance by Xxxxxx in Los
Angeles, California and shall be governed by and construed in accordance with
the internal laws (as opposed to the conflicts of law provisions) of the State
of California. Each of the undersigned hereby (i) irrevocably submits to the
jurisdiction of any state or federal court located in Los Angeles County,
California, over any action or proceeding to enforce or defend any matter
arising from or related to this Guaranty; (ii) irrevocably waives, to the
fullest extent the undersigned may effectively do so, the defense of an
inconvenient forum to the maintenance of any such action or proceeding; (iii)
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdictions by suit on the
judgment or in any other manner provided by law; and (iv) agrees not to
institute any legal action or proceeding against Lender or any of Lender's
directors, officers, employees, agents or property, concerning any matter
arising out of or relating to this Guaranty in any court other than one located
in Los Angeles County, California. Nothing in this paragraph shall affect or
impair Xxxxxx's right to serve legal process in any manner permitted by law or
Xxxxxx's right to bring any action or
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proceeding against any of the undersigned or its property in the courts of any
other jurisdiction. Wherever possible each provision of this Guaranty shall be
interpreted as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
THE UNDERSIGNED AND LENDER EACH EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE UNDERSIGNED AND LENDER OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND THE UNDERSIGNED AND LENDER EACH AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT THIS GUARANTY OR A COUNTERPART OR COPY OF THIS
GUARANTY MAY BE FILED
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WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
March 31, 1999.
"Guarantor" "Guarantor"
WESTON PRESIDIO CAPITAL III, L.P. WPC ENTREPRENEUR FUND, LP
By: Weston Presidio Capital Management III, By: Weston Presidio Capital Management III,
LLC, its General Partner LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Title: General Partner Title: General Partner
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Guarantor address: Guarantor address:
000 Xxxxxxx Xx., #0000 000 Xxxxxxx Xx., #1210
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San Francisco, CA 94104 San Francisco, CA 94104
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Attention: Xxxxxx Xxxxxxxx Attention: Xxxxxx Xxxxxxxx
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Phone: 000-000-0000 Phone: 000-000-0000
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Telecopier: 000-000-0000 Telecopier: 000-000-0000
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