UNCONDITIONAL GUARANTY AGREEMENT
Exhibit 10.12
THIS
UNCONDITIONAL GUARANTY AGREEMENT (the "Guaranty") is made as of the
8th day of February, 2017, by NEXTGEN PRO, LLC, a Delaware limited
liability company (the "Guarantor") to and for the benefit of
NEXTGEN DELAER SOLUTIONS, LLC, a Delaware limited liability company
(the "Lender").
R E C I T A L S
A. Pursuant
to the Asset Purchase Agreement executed on January 8, 2017 by and
among the Lender, Smart Server, Inc. (“Borrower”),
Halcyon Consulting, LLC (“Halcyon”) and certain other
parties signatory thereto, the Lender agreed to sell and the
Borrower agreed to purchase substantially all of the assets of the
Lender (the “Asset Purchase Agreement”).
B. One
Million Three Hundred Thirty-Three Thousand Three Hundred
Thirty-Three Dollars ($1,333,333.00) of the purchase price under
the Asset Purchase Agreement is to be paid pursuant to the terms
and conditions set forth in the Subordinated Secured Confessed
Judgment Promissory Note of even date herewith executed by Borrower
in favor of the Lender (the "Note").
C. On
the date hereof, Borrower assigned its rights, but not obligations,
under the Asset Purchase Agreement to the Guarantor.
D. As
a condition precedent to the Lender’s agreement to close
under the Asset Purchase Agreement, the Guarantor has agreed to
execute and deliver this Guaranty pursuant to which the Guarantor
will guarantee to the Lender (the "Beneficiary") the full payment
and performance of all of the Borrower's obligations under the
Note.
NOW,
THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Guarantor agrees as
follows:
1. Guaranty.
The Guarantor unconditionally guarantees to the Beneficiary and its
respective successors and assigns, the full and prompt payment to
the Beneficiary when due of all amounts of every kind due to the
Beneficiary from the Borrower pursuant to the Note, and the full
and prompt performance of all of the Borrower's obligations to the
Beneficiary under the Note. The Guarantor unconditionally
guarantees that all sums due and owing under the Note shall be paid
when and as due, whether by reason of installments, acceleration or
otherwise, time being of the essence.
2. Nature
of the Guaranty. This is a guaranty of payment and not of
collection and the obligations of the Guarantor hereunder shall be
direct, immediate and primary. This Guaranty shall in all respects
be a continuing absolute and unconditional guarantee irrespective
of the genuineness, validity or enforceability of the Note or any
part thereof, or by the existence, enforceability, perfection or
extent of any collateral therefor.
3. Beneficiaries
Need Not Pursue Rights Against Borrower, Any Guarantor, or
Collateral. The Guarantor authorizes the Beneficiary without
notice, demand or any reservation of rights against the Guarantor
and without affecting the Guarantor's obligations hereunder, from
time to time, to resort to the Guarantor for payment of the amounts
due and performance of the obligations under the Note or any part
thereof, whether or not the Beneficiary shall have resorted to any
collateral securing the Note or any part thereof or shall have
proceeded against any other person principally or secondarily
obligated with respect to the Note or any part
thereof.
4. Accuracy
of Representations. The Guarantor warrants that all of the
representations made by the Guarantor in connection with the Note
and the transactions contemplated thereby are true and correct and
not knowingly misleading and the Guarantor agrees to indemnify the
Beneficiary from any loss or expense as a result of any
representation or statement of the Guarantor or the Borrower being
false, incorrect, or knowingly misleading
5. Representations
of the Guarantor. To induce the Beneficiary to accept this
Guaranty for the purposes for which it is given, the Guarantor
represents and warrants to the Beneficiary as follows:
A. Organization. Guarantor is a limited
liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate
its properties and to carry on its business. Guarantor is duly
qualified or authorized to do business as a foreign company and is
in good standing under the laws of each jurisdiction in which the
conduct of its business or the ownership of its properties requires
such qualification or authorization, except to the extent the
failure to do so would not reasonably be expected to result in a
material adverse effect on Guarantor.
B. Non-Existence
of Defaults, etc. The Guarantor is not in material default
with respect to any of its existing indebtedness, and the making
and performance of this Guaranty will not immediately, or with the
passage of time, the giving of notice, or both, constitute a
default under any existing indebtedness of Guarantor.
C. Violation
of Laws. In the conduct of its businesses and affairs, the
Guarantor is not in violation of any applicable federal, state or
local laws, the violation of which would cause a material adverse
effect on the Guarantor.
D. Capacity.
The execution, delivery and performance of this Guaranty has been
duly authorized by all necessary action by or on behalf of
Guarantor. The Guarantor has the legal capacity to execute and
deliver this Guaranty as a valid obligation, which is binding and
enforceable in accordance with the terms hereof.
E. No
Insolvency. There is no pending or threatened bankruptcy or
insolvency proceeding by or against the Guarantor.
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6. Security.
As security for the prompt payment and complete performance by
Guarantor of its obligations under this Guaranty, Guarantor has
executed and delivered to the Lender on the date hereof the
Security Agreement (hereinafter defined in Section 9).
7. Rights
of Beneficiary to Deal With Borrower, Guarantor, and
Collateral. The Beneficiary may, without compromising,
impairing, diminishing, or in any way releasing the Guarantor from
the Guarantor's obligations hereunder and without notifying or
obtaining the prior approval of the Guarantor at any time or from
time to time: (a) waive or excuse a default or defaults by the
Borrower or any person who has guaranteed in whole or in part any
of the Borrower's obligations under the Note, or a delay in the
exercise by the Beneficiary of any or all of the Beneficiary's
rights or remedies with respect to such default or defaults; (b)
grant extensions of time for payment or performance by the Borrower
or any person who has guaranteed in whole or in part any of the
Borrower's obligations under the Note; (c) release, substitute,
exchange, surrender, or add collateral of the Borrower or any
person who has guaranteed in whole or in part any of the Borrower's
obligations under the Note, or waive, release or subordinate, in
whole or in part, any lien or security interest held by the
Beneficiary on any real or personal property securing payment or
performance, in whole or in part, of the Borrower's obligations
under the Note; (d) release the Borrower or any person who has
guaranteed in whole or in part, any of the Borrower's obligations
under the Note; (e) apply payments made by the Borrower, or by any
person who has guaranteed in whole or in part, any of the
Borrower's obligations under the Note, to any sums owed by the
Borrower to the Beneficiary, in any order, or manner, or to any
specific account or accounts, as the Beneficiary may elect; or (f)
modify, change, renew, extend, or amend, in any respect any of the
provisions of the Note or this Guaranty.
8. Waivers
by the Guarantor. The Guarantor waives: (a) any and all
notices whatsoever with respect to this Guaranty or with respect to
any of the Borrower's obligations under the Note, including, but
not limited to, notice of: (i) the Beneficiary's acceptance hereof
or the Beneficiary's intention to act, or the Beneficiary's action,
in reliance hereon; (ii) the present existence or future occurrence
of an event of default of any of the Borrower's obligations under
the Note or any terms or amounts thereof of any change therein;
(iii) any default by the Borrower or any surety, pledgor, grantor
of security, guarantor or other person who has guaranteed or
secured in whole or in part the Borrower's obligations under the
Note; and (iv) the obtaining or release of any guaranty or surety
agreement (in addition to this Guaranty), pledge, assignment, or
other security for any of the Borrower's obligations under the
Note; and (b) (i) presentment, protest and demand for payment of
any sum due from the Borrower under the Note or any person who has
guaranteed in whole or in part any of the Borrower's obligations
under the Note, including the Guarantor; (ii) notice of default by
the Borrower or any person who has guaranteed in whole or in part
any of the Borrower's obligations under the Note, including the
Guarantor; (iii) demand for performance by the Borrower or any
person who has guaranteed in whole or in part any of the Borrower's
obligations under the Note.
9. Events
Authorizing Acceleration of Guaranty. In the event any of
the following occur with respect to the Guarantor or, with respect
to the Borrower (an "Event of Default"), the Beneficiary may, in
the Beneficiary's sole and absolute discretion, accelerate and call
due as to the Guarantor all sums due from the Borrower: (a)
Guarantor shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any
successor thereto (the “Bankruptcy Code”); or an
involuntary case is commenced against Guarantor under the
Bankruptcy Code, and the petition is not controverted within 30
days, or is not dismissed within 90 days, after commencement of the
case; or a trustee or custodian is appointed for, or takes charge
of, all or substantially all of the property of Guarantor, or
Guarantor commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Guarantor, or there
is commenced against Guarantor any such proceeding which remains
undismissed for a period of 90 days, or Guarantor is adjudicated
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Guarantor
makes a general assignment for the benefit of creditors; (b) any
"Default" as defined under the Note or under the Security Agreement
between the Guarantor and the Lender, dated the date hereof,
attached hereto as Exhibit A and incorporated herein by reference
(the “Security Agreement”), or (c) a default by the
Guarantor in payment or in performance of any of its obligations
under this Guaranty.
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10.
Confession of
Judgment. UPON A DEFAULT OF
THIS GUARANTY, THE GUARANTOR AUTHORIZES ANY ATTORNEY ADMITTED TO
PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES, INCLUDING
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AS GUARANTOR’S TRUE AND
LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER AND AUTHORITY FOR
GUARANTOR, IN GUARANTOR’S NAME, PLACE AND STEAD,
ON GUARANTOR’S BEHALF, TO
WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST GUARANTOR, IN THE
FULL AMOUNT THEN DUE UNDER THIS GUARANTY, INCLUDING ANY EXPENSES OF
COLLECTION, PLUS REASONABLE ATTORNEYS’ FEES. THE AUTHORITY
AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST GUARANTOR SHALL
NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH
AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS FROM
TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN AS
THE BENEFICIARY SHALL DEEM NECESSARY OR ADVISABLE UNTIL ALL SUMS
DUE UNDER THE GUARANTY HAVE BEEN PAID IN FULL.
11.
Collection
Expenses. All reasonable and documented out-of-pocket costs
and expenses (including reasonable attorney fees and expenses) of
the prevailing party in any action to enforce any rights under this
Guaranty, shall be borne and paid by the non-prevailing
party.
12.
Subordination of Certain
Indebtedness. If the Guarantor shall advance any sums to
Borrower or its successors or assigns or if the Borrower or its
successors or assigns shall hereafter become indebted to the
Guarantor, such sums and indebtedness shall be subordinate in all
respects to the amounts then or thereafter due and owing to the
Beneficiary. Nothing herein contained shall be construed to give
the Guarantor any right of subrogation in and to any obligations of
the Borrower to the Beneficiary, or in any of the collateral
therefor, or all or any part of the Beneficiary's interest
therein.
13.
Invalidity of Any
Part. If any provision or part of any provision of this
Guaranty shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions or the
remaining part of any effective provisions of this Guaranty and
this Guaranty shall be construed as if such invalid, illegal, or
unenforceable provision or part thereof had never been contained
herein, but only to the extent of its invalidity, illegality, or
unenforceability.
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14.
Subrogation Rights.
The Guarantor waives and releases the Beneficiary from any damages
which the Guarantor may incur as a result of any impairing,
diminishing, or destroying of any of the Guarantor's rights of
subrogation, unless such impairing, diminishing or destroying is
willful or grossly negligent. To the extent that the Guarantor
satisfies or discharges any of the Borrower's obligations to the
Beneficiary, the Beneficiary does hereby assign, transfer and
convey unto the Guarantor any and all rights, interests, actions or
causes of action, claims and remedies of the Beneficiary, provided,
that, any and all such rights of the Guarantor shall be subordinate
to the rights and interests of the Beneficiary
hereunder.
15.
Notices. Any notice
or consent required or permitted by this Guaranty (but without
implying any obligation to give a notice or obtain a consent) shall
be in writing and shall be made by hand delivery, by overnight mail
by nationally recognized courier, by wire or by certified mail,
return receipt requested, postage prepaid, addressed to the
Beneficiary or the Guarantor at the appropriate address set forth
below or to such other address as may be hereafter specified by
written notice by either party, and shall be considered given as of
the date of hand delivery or wire, one day after being sent by
overnight mail or as of two (2) business days after the date of
mailing, as the case may be:
If to
the Beneficiary:
NextGen
Dealer Solutions, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
With a
copy (which shall not constitute notice) to:
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esquire
Offit
▇▇▇▇▇▇, P.A.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
If to
the Guarantor:
NextGen
Pro, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a
copy (which shall not constitute notice) to:
Akerman
LLP
Three
Brickell City Centre
▇▇ ▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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16. Effective
Date. The guaranty of the Guarantor as herein set forth
shall be effective as of the date of this Guaranty, independent of
the date of execution or delivery thereof.
17. Duration.
This Guaranty shall be a continuing one and shall be binding upon
the Guarantor regardless of how long before or after the date of
this Guaranty any of the Borrower's obligations to the Beneficiary
were or are incurred by the Borrower. The guaranty under this
Guaranty shall be terminated upon the repayment and performance in
full of all of the Borrower's obligations under the
Note.
18. Binding
Nature. This Guaranty shall inure to the benefit of and be
enforceable by the Beneficiary and the Beneficiary's successors and
assigns and any other person to whom the Beneficiary may grant an
interest in the Borrower's obligations to the Beneficiary, and
shall be binding upon and enforceable against the Guarantor's
heirs, personal representatives, and assigns.
19. Assignability.
This Guaranty may be assigned by the Beneficiary at any time or
from time to time. This Guaranty may not be assigned by the
Guarantor.
20. Choice
of Law; Consent to Jurisdiction. This Guaranty shall be
construed, interpreted, and enforced under the laws of the State of
Maryland.
21. Tense,
Gender, Defined Terms, Captions. As used herein, the plural
shall refer to and include the singular, and the singular the
plural, and the use of any gender shall include and refer to any
other gender. All captions are for the purpose of convenience
only.
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IN
WITNESS WHEREOF, the Guarantor has executed this Guaranty under
seal as of the date first written above, with the specific
intention that this Guaranty constitutes an instrument under
seal.
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WITNESS:
________________________________
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GUARANTOR
NEXTGEN
PRO, LLC
By: /s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
(SEAL)
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