EXHIBIT 10.2
GUARANTY AND INDEMNIFICATION AGREEMENT
THIS GUARANTY (the "Guaranty") is executed and delivered as of April 26,
2005, by RCG COMPANIES INCORPORATED, a Delaware corporation ("Guarantor"), to
RMK HOLDINGS, LLC, a Delaware limited liability company ("RMK").
STATEMENT OF PURPOSE
Contemporaneously with the execution of this Guaranty, RMK has purchased
certain assets and assumed certain liabilities from Logisoft Corp., a New York
corporation, and a subsidiary of Guarantor ("Logisoft"), and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Corp., a New York corporation and a wholly-owned subsidiary of Logisoft
("eStorefronts" and together with Logisoft, "Sellers"), pursuant to an Asset
Purchase Agreement between RMK and Sellers of even date herewith (the "Asset
Purchase Agreement").
As additional consideration for the Asset Purchase Agreement and to induce
RMK to enter into the Asset Purchase Agreement, Guarantor has agreed to execute
and deliver this Guaranty, without which RMK would not have entered into the
Asset Purchase Agreement.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, and for and
in consideration of the Asset Purchase Agreement, Guarantor agrees as follows:
1. Guarantee. Except as provided herein, Guarantor absolutely and
unconditionally guarantees to RMK the due and punctual payment and performance
by Sellers of all sums that become due and payable to RMK under and pursuant to
the terms and provisions of the Asset Purchase Agreement and all covenants and
obligations of Sellers under and pursuant to the terms and provisions of the
Asset Purchase Agreement, as and when said sums become due and payable or said
covenants and obligations shall be performed, pursuant to and in strict
conformity with the terms and conditions of the Asset Purchase Agreement,
including without limitation terms and conditions relating to the Deductible (as
defined in the Asset Purchase Agreement) and any procedural requirements
relating to indemnification contained therein (Such sums, covenants and
obligations of Sellers to RMK are hereinafter sometimes referred to as the
"Obligations").
2. No Impairment. No exercise or nonexercise by RMK of any right it may have
with respect to the Obligations, no dealing by RMK with Sellers or any
guarantor, endorser or any other person, and no change, impairment or suspension
of any right or remedy of RMK shall in any way affect any of the obligations of
Guarantor hereunder or any security furnished by Guarantor or give Guarantor any
recourse against RMK.
3. Waivers. Except as provided in Section 7.1 of the Asset Purchase Agreement
relating to the survival of representations and warranties, Guarantor hereby
waives and agrees not to assert or take advantage of (a) the defense of the
statute of limitations in any action hereunder for the collection of the
Obligations or the performance of any obligation hereby guaranteed; (b) notice
of acceptance of this Guaranty, demand, protest and notice of any other kind,
including without limitation presentment and demand for payment of the
Obligations, protest and notice of dishonor or default with respect to the
Obligations and any demand for payment of this Guaranty; and (c) any defense
based upon any election of remedies by RMK, which impairs the subrogation rights
of Guarantor or the right of Guarantor to proceed against Sellers for
reimbursement, or both.
4. Continuing Guaranty. Until all Obligations of Sellers to RMK have been paid
in full, Guarantor shall have no right of subrogation and waives any right to
enforce any remedy which RMK now has or may hereafter have against Sellers and
any benefit of, and any right to participate in, any security now or hereafter
held by RMK.
5. Indemnification. Guarantor agrees to promptly pay to RMK on demand and to
indemnify and hold harmless RMK from and against any and all costs, expenses,
losses, damages and liabilities (including reasonable attorney's fees and
expenses) incurred by RMK in collecting or compromising any Obligations hereby
guaranteed or in enforcing this Guaranty against Guarantor, whether or not suit
is filed.
6. Guaranty of Payment and Performance. This Guaranty shall be construed as an
absolute, continuing and unlimited guaranty of payment (and not of collection)
and performance without regard to the regularity, validity or enforceability of
any Obligations hereby guaranteed, and in the event of the default of Sellers in
the due and punctual payment and performance of the Obligations, RMK shall not
be required to proceed first against Sellers or against any collateral security
before resorting to and proceeding against Guarantor for payment.
7. Miscellaneous.
(a) This Guaranty has been duly executed and delivered by the Guarantor
and constitutes a valid and binding obligation of the Guarantor, enforceable in
accordance with its terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws
of general application affecting the rights or remedies of creditors and (ii)
general principles of equity.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty and the consummation of the transactions contemplated hereby will not
violate, contravene or constitute a default under any provision of applicable
law or regulation or of any judgment, order any writ or decree of any court or
governmental instrumentality, or of any instrument or agreement to which the
Guarantor is a party or by which the Guarantor may be bound or result in the
creation of any lien upon any of the property of the Guarantor.
(c) This Guaranty shall inure to the benefit of RMK, its successors and
assigns. This Guaranty shall be binding upon Guarantor, its successors and
assigns, provided that Guarantor may not assign this Guaranty or its obligations
hereunder without the prior written consent of RMK other than by operation of
law.
(d) If any one or more of the provisions contained in this Guaranty, or
any instrument or other document delivered pursuant to this Guaranty, should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
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(e) This Guaranty and the rights and obligations of the parties hereunder
shall be governed by and construed and interpreted in accordance with the laws
of the State of North Carolina.
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IN WITNESS WHEREOF, Guarantor has caused its duly authorized
representative to execute this GUARANTY under seal as of the date first above
written.
RCG COMPANIES INCORPORATED
By:
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President
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[CORPORATE SEAL]
ATTEST:
By:
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Secretary
Accepted as of ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇ HOLDINGS, LLC
By:
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K. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Manager
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