EXHIBIT 10.3
4,000,000 DM
REVOLVING CREDIT AGREEMENT
Between
PRIME CORE HOLDING AG
and
FINCA CONSULTING, INC.
Dated December 12, 1997
REVOLVING CREDIT AGREEMENT
THIS AGREEMENT is made as of December 12, 1997, by and between Prime Core
Holding AG, a corporation organized under the laws of the Federal Republic of
Germany, having its principal offices located at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Borrower"), Finca Consulting, Inc., a Colorado
corporation (the "Lender."), ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual, having an address c/o
Prime Core Holding AG, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, an individual, having an address
c/o Prime Core Holding AG (collectively, sometimes hereinafter referred to as
the "Guarantors").
B A C K G R O U N D :
WHEREAS, the Borrower is an affiliate of the Lender and both parties desire
to document Borrower's outstanding loans from the Lender, and, establish a
certain credit limit to provide for the repayment of these borrowings to the
lender, and;
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, officers and directors of
both the Borrower and the Lender and the owners of Prime Core Holding AG, shall
jointly and severally personally guarantee the repayment of all of the
borrowings and loans of the Borrower to the Lender, and;
WHEREAS, the Borrower, Lender as well as ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ desire to set forth in this document all of the terms and conditions
that shall govern their credit relationship.
NOW, THEREFORE, in consideration of the mutual promises made by the parties
to each other, it is agreed as follows:
SECTION 1. AMOUNT AND TERMS OF LOAN COMMITMENT AND LOANS
1.1 The Loan Commitment. Subject to the terms and conditions of this
Agreement, the Lender agrees to make revolving credit loans (individually, a
"Loan"; collectively, the "Loans") to the Borrower from time to time during the
period (the "Loan Commitment Period", commencing upon the date hereof and
terminating on the second anniversary date (the "Termination Date") in an
aggregate principal amount at any one time outstanding not to exceed 4,000,000
DM (the "Loan Commitment"). Lender and Borrower hereby acknowledge that Lender
has previously loaned to Borrower certain sums whose aggregate outstanding
balance is 3,038,000 DM as of the date hereof; the parties agree that his amount
shall be deemed a "Loan" for all purposes under this Agreement and currently
outstanding under the Loan Commitment.
1.2 The Note. The Loans made by the Lender shall be evidenced by a
promissory note of the Borrower in the form of Exhibit A, with appropriate
insertions, which shall be payable to the order of the Lender and shall
represent the obligation of the Borrower to pay the amount of the Loan or, if
less, the aggregate unpaid principal amount of all Loans made by the Lender,
with interest thereon as prescribed in Section 1.5. The Note shall (a) be dated
the date hereof, (b) be stated to mature on the Termination Date and (c) bear
interest for the period from the date hereof until paid in full on the unpaid
principal amount thereof from time to time outstanding at the rates prescribed
in Section 1.5.
1.3 Procedure for Borrowing Under Loan Commitment. The Borrower may borrow
under the Loan Commitment at any time during the Loan Commitment Period.
1.4 Optional Prepayment The Borrower may, at his option, prepay the Note
without premium or penalty, in whole or in part.
1.5 Interest Rates. (a) The Loans shall bear interest (calculated on the
basis of a 360-day year for the actual number of days elapsed) on the unpaid
principal amount thereof at a rate per annum equal to 5% payable annually.
(b) If all or a portion of the principal amount of any of the Loans shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall bear interest at the rate of 5%
per annum, to the extent permitted by law.
1.6 Maturity of Loans. The outstanding principal amount of the Loans shall
be due and payable on the Termination Date.
1.7 Previous Advances. The Lender and the Borrower acknowledge that the
amount of 3,038,000 DM has been previously advanced by the Lender to the
Borrower and represents the aggregate outstanding principal balance due as of
the date hereof. Provided that the Borrower has made all payments required to be
paid hereunder and is not in default, the Lender may, upon Borrower's request,
lend additional sums up to the Loan Commitment amount of 4,000,000 DM.
1.8 Guaranty of Payment. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ have executed
and delivered to the Lender original copies of a Unlimited Continuing Guaranty
Agreement, a copy of which is annexed hereto as Exhibit B, pursuant to which
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ agree to be jointly and severally liable to
the Lender for any and all repayment obligations of the Borrower under this
Agreement.
SECTION 2. COVENANTS
2.1 Payment of Note. The Borrower shall pay the principal of, and interest
on, the Note on the dates and in the manner provided herein and in the Note.
2.2 Notice of Default. If any one or more events occur which constitute a
Default or an Event of Default, upon obtaining knowledge thereof, the Borrower
will forthwith give notice to the Lender, specifying the nature and status of
the Default or Event of Default.
2.3 Covenant of the Borrower. The Borrower covenants and agrees that from
and after the date hereof he shall pay the Loan according to its terms.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to make the
Loans hereunder, the Borrower hereby represents and warrants as follows:
3.1. No Conflict. Neither the execution and delivery of this Agreement nor
the performance by the Borrower of the transactions contemplated hereby will
violate or conflict with any agreement to which the Borrower is a party or
result in the acceleration of, or entitle any party to accelerate the maturity
or the cancellation of the performance of any obligation under, or result in the
creation or imposition of any Lien in or upon the assets of the Borrower or
constitute a default (or an event which might, with the passage of time.or the
giving of notice, or both, constitute a default) under any contract; to the best
of Borrower's knowledge, any order, judgment, regulation or ruling of any
Governmental or Regulatory Body to which the Borrower is a party or by which any
of his property or assets may be bound or affected or to the best of Borrower's
knowledge, with any provision of any law, rule, regulation, order, judgment, or
ruling of any Governmental or Regulatory Body applicable to the Borrower.
3.2 Litigation. There are no outstanding orders, judgments, injunctions,
investigations, awards or-decrees of any court, Governmental or Regulatory Body
or arbitration tribunal by which the Borrower or any of his assets, properties
or business is bound. There are no actions, suits, claims, legal, administrative
or arbitration proceedings pending or, to the best knowledge of the Borrower,
overtly threatened (whether or not the defense thereof or liabilities in respect
thereof are covered by insurance) against or affecting the Borrower or any of
his assets or properties, that, individually or in the aggregate, could, if
determined adversely to the Borrower have a Material Adverse Effect, nor, to the
best knowledge of the Borrower, are there any facts which are likely to give
rise to any such action, suit, claim, investigation or legal, administrative or
arbitration proceeding.
SECTION 4. CONDITIONS TO SUBSEQUENT ADVANCES
The obligation of the Lender to permit Borrower's previous loans to be
included in the Loan Commitment and to make any subsequent advance pursuant to
this Agreement shall be subject to compliance by the Borrower with his
agreements herein contained, and, shall be subject to Borrower executing and
delivering to Lender the Note in the form annexed hereto as Exhibit A.
SECTION 5. CONDITIONS TO ALL LOANS. The obligation of the Lender to make any
Loan to the Borrower and to permit previous borrowings to be accumulated and
added to the Loan Commitment under this Agreement is subject to fulfillment of
the following conditions precedent to the satisfaction of the Lender:
5.1 Representations and Warranties. The representations and warranties made
by the Borrower in this Agreement and in any certificate, document or financial
or other statement furnished at any time hereunder shall be true and correct in
all material respects unless stated to relate to a specific earlier date.
5.2 No Default or Event of Default. No Default or Event of Default shall
have occurred under this Agreement or under the terms of the Note.
SECTION 6. DEFAULTS AND REMEDIES
6.1 Events of Default. Event of Default, whenever used herein means any of
the following events:
(a) the Borrower defaults in the due and punctual payment of
principal of, interest on, or any other amount owing in respect of, the Note
when and as the same shall become due and payable, and continuance of such
default for a period of 5 Business Days after receipt of notice; or
(b) the Borrower defaults in the performance or observance of any
covenant or agreement of the Borrower in this Agreement or the Note and the
continuance of such default for a period of 30 calendar days after there has
been given to the Borrower by the Lender a written notice specifying such
default and requiring it to be remedied; or
(c) the Borrower shall (i) default in any payment of principal of or
interest on any Loan or (ii) default in the observance or performance of any
agreement or condition relating to any such Loan or any other event shall occur
or condition exist, the effect of which default or other event or condition is
to cause (immediately or with the giving of notice or lapse of time or both) any
such Loan to become due prior to its stated maturity; or
(d) the Borrower, either pursuant to or within the meaning of any
applicable bankruptcy or insolvency law: (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for the
benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree
under any applicable bankruptcy or insolvency law that: (i) is for relief
against the Borrower in an involuntary case, (ii) appoints a custodian of the
Borrower for any substantial part of all the property of the Borrower, or (iii)
orders the liquidation of the Borrower; and the order or decree remains unstayed
and in effect for 60 days.
The term Custodian means any receiver, trustee, assignee, custodian,
liquidator or similar official under any applicable bankruptcy or insolvency
law.
6.2 Acceleration of Maturity. If an Event of Default occurs and is
continuing, then and in every such case the Lender may, declare the principal of
the Note to be due and payable immediately and the Loan Commitment to be
terminated, by a notice in writing to the Borrower, and upon any such
declaration the principal of the Note shall become immediately due and payable
and the Loan Commitment shall be terminated.
SECTION 7. MISCELLANEOUS
7.1 Amendments and Waiver. This Agreement and the Note may be amended, and
the terms hereof waived, only by a written instrument signed by the parties
hereto or, in the case of a waiver, by the party waiving compliance.
7.2 Notices. Any notice, demand or delivery pursuant to the provisions
hereof shall be sufficiently given or made if sent by hand or by registered or
certified mail, postage prepaid, addressed to the Lender at Finca Consulting,
Inc., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
President or, except as otherwise expressly provided herein, to the Borrower at
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or such other address as shall have
been furnished to the party giving or making such notice, demand or delivery.
Any such notice shall be deemed given when so delivered personally or, by
telecopy, or if mailed, five (5) days following the deposit with a reputable
overnight courier.
7.3 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey without regard to
principles of conflicts of law.
7.4 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
7.5 Successors and Assigns. This Agreement and each document and
certificate delivered pursuant thereto shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
permitted assigns, except that neither the Borrower nor the Lender may assign or
transfer any of its rights under this Agreement or the Note without the prior
written consent of the other.
7.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Lender.
7.7 Severability. Any provision of this Agreement or the Note which is
prohibited, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the,extent of such prohibition, invalidity or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition, invalidity or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction or
any other provision of this Agreement or the Note.
7.8 Investment. The Lender is acquiring the Note for its own account and
not with a view to resale.
7.9 Entire Agreement. This Agreement, including Exhibit A annexed hereto
and incorporated herein by reference, and the agreements, certificates and other
documents delivered pursuant to this Agreement contain the entire agreement
among the parties with respect to the transactions described herein, and
supersede all prior agreements, written or oral, with respect thereto.
7.10 Indemnification. The Borrower agrees to indemnify, defend and hold
harmless the Lender and its respective shareholders, officers, directors,
employees, and any Affiliates of the foregoing, and their successors and assigns
(collectively, the Lender Group) from and against any and all losses,
liabilities (including punitive or exemplary damages and fines or penalties and
any interest thereon), expenses (including reasonable fees and disbursements of
counsel and expenses of investigation and defense), claims, Liens or other
obligations of any nature whatsoever (hereinafter individually, a "Loss" and
collectively, "Losses") which, directly or indirectly, arise out of, result form
or relate to, (i) any inaccuracy in or any breach of any representation or
warranty of the Borrower contained in Section 4, and (ii) any breach of any
covenant of the Borrower contained in this Agreement or in any other document
contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
LENDER:
FINCA CONSULTING, INC.
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
BORROWER:
PRIME CORE HOLDING AG
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
EXHIBIT A
PROMISSORY NOTE
4,000,000 DM December 12, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, Prime Core Holding AG (the
"Borrower"), hereby unconditionally promises to pay to the order of Finca
Consulting, Inc., a Colorado corporation (the "Lender"), at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,President, in Deutsche
Marks, the lawful money of the Federal Republic of Germany, and in immediately
available funds, the principal amount of the lesser of (i) 4,000,000 DM or (ii)
the aggregate unpaid principal amount of all Loans made by the Lender to the
undersigned and accrued interest, if any, on or before the second anniversary
date hereof as set forth in Section 1.1 of the Revolving Credit Agreement, dated
as of the date hereof, between the undersigned and the Lender (the "Credit
Agreement"). Capitalized terms used herein shall have the same meanings as set
forth in the Credit Agreement, unless otherwise defined herein.
The undersigned further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from the date hereof
until such amount shall be paid (whether at the stated maturity, by acceleration
or otherwise) on the dates and at the applicable rates per annum as provided in
Section 1.5 of the Credit Agreement.
If any payment on this Note becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Note referred to in the Credit Agreement and is entitled
to the benefits thereof and is subject to the terms and conditions provided
therein.
Except as expressly provided herein, the undersigned hereby waives
presentation, demand, protest and all other notices of any kind.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New Jersey without regard to principles of conflicts of law.
BORROWER:
PRIME CORE HOLDING AG
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
EXHIBIT B
UNLIMITED CONTINUING GUARANTY AGREEMENT
This UNLIMITED CONTINUING GUARANTY AGREEMENT (the "Guaranty") is made as of
this 12th day of December, 1997, by ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual having an
address at Am Abelshof 12 D-47445 Moers-Repelen, Germany and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
an individual having an address at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇
(sometimes hereinafter referred to as the "Guarantors"), in favor and for the
benefit of Finca Consulting, Inc., a Colorado corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, Lender has agreed to make a loan to Prime Core Holding AG, a
German corporation with its chief executive office located at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Borrower") in the principal amount of FOUR MILLION
DEUTSCHE MARKS (4,000,000 DM) (the "Loan"); and
WHEREAS, the Loan is evidenced by a certain promissory note dated of even
date herewith from Borrower in favor of Lender (the "Note"); and
WHEREAS, Guarantors are officers, directors and the owners of Borrower and,
as such, have and will derive substantial benefits from the making of such
loans, advances and extensions of credit to Borrower by Lender; and
WHEREAS, in consideration of such benefits, Guarantors have agreed to
guarantee the payment and performance of Borrower's obligations to Lender,
NOW, THEREFORE, Guarantors, jointly and severally for all purposes under
this Agreement, (hereinafter the Guarantors are referred to collectively as the
"Guarantor") agree as follows:
1. Guaranty of Payment and Performance. Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Lender the full and punctual
payment and performance of any and all loans, advances, indebtedness,
liabilities, obligation, covenants or duties of Borrower to Lender of any kind
or nature, but only arising under the Loan, whether in whole or in part, whether
created directly by Lender or acquired by assignment, purchase, discount or
otherwise, whether any of the foregoing are direct or indirect, joint or
several, absolute or contingent, due or to become due, now existing or hereafter
arising, whether under any present or future document, agreement or other
instrument, and whether or not evidenced by a writing and specifically
including, but not being limited to, unpaid principal, plus all accrued and
unpaid interest thereon, together with all fees, expenses, commissions, charges,
penalties and other amounts owing by or chargeable to Borrower under the Note
and any other Loan Document related thereto (collectively, the "Obligations"),
as and when the same shall become due and payable, whether at maturity, by
acceleration or otherwise.
2. Maximum Guaranteed Amount. Notwithstanding any other provision of this
Guaranty to the contrary, if the obligations of Guarantor hereunder would
otherwise be held or determined by a court of competent jurisdiction in any
action or proceeding involving any state corporate law or any state or Federal
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other law affecting the rights or creditors generally, to be void, invalid or
unenforceable to any extent on account of the amount of Guarantor's liability
under this Guaranty, then notwithstanding any other provision of this Guaranty
to the contrary, the amount of liability shall, without any further action by
Guarantor or any other person, be automatically limited and reduced to the
highest amount which is valid and enforceable as determined in action or
proceeding.
3. Continuing Nature. This Guaranty is a primary and original obligation of
Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty
of payment and performance and not of collectibility and is in no way
conditioned or contingent upon any action or omission by Lender, including any
requirement that Lender first attempt to collect any of the Obligations from
Borrower or resort to any security therefor, or upon any other action,
occurrence, or circumstance whatsoever other than the failure of Borrower to
promptly and completely make any payment due to Lender in respect to the
Obligations as and when the same become due and payable, whether at maturity, by
acceleration or otherwise. This Guaranty is in addition to, and not in
substitution for or in reduction of, any other guaranty by Guarantor or any
other guarantor in favor of Lender. This Guaranty shall be continuing and shall
not be discharged, impaired or affected by (i) the power or authority or lack
thereof of Borrower to incur or contract for the Obligations or to execute,
acknowledge or delivery any document, agreement or other instrument evidencing,
securing or otherwise executed in connection with the Obligations; (ii) the
regularity or irregularity, validity or invalidity, or enforceability or
unenforceability of the Obligations; (iii) any defenses or counterclaims
whatsoever that Borrower may or might have to the payment or performance of the
Obligations or to the assertion of a default under any document, agreement or
other instrument evidencing, securing or otherwise executed in connection with
the Obligations including, but not limited to, lack of consideration, statute of
frauds, infancy, breach of warranty, lender liability, usury, fraud and statute
of limitations; (iv) the existence or non-existence of Borrower as a legal
entity; (v) the transfer by Borrower of all or any part of the property securing
the Obligations except by the permitted assumption; (vi) any right of setoff,
counterclaim or defense (other than the payment and performance of the
Obligations in full) that Guarantor may or might have to its respective
undertakings, liabilities and obligations under this Guaranty, each and every
such defense being hereby waived by Guarantor; or (vii) the inability of Lender
to claim any amount of interest, fees, costs, or charges from Borrower pursuant
to Section 506(b) of the United States Bankruptcy Code, as amended.
4. Guarantor's Agreement to Pay. Guarantor further agrees, as the principal
obligor and not as a guarantor or surety only, to pay to Lender, on demand, all
costs and expenses (including court costs and legal expenses) incurred or
expended by Lender in connection with the Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
Guaranty from the time such amounts become due until payment, at the rate per
annum equal to the rate of interest charged by the Lender pursuant to the Note,
including the increased default rate of interest; provided, however, that if
such interest exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted amount.
5. Unlimited Guaranty. The liability of Guarantor hereunder shall be
unlimited.
6. Waivers by Guarantor; Lender's Freedom to Act. Guarantor agrees that the
Obligations will be paid and performed strictly in accordance with their
representative terms regardless of law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of Lender
with respect thereto. Guarantor waives presentment, demand, protest, notice of
acceptance, notice of obligations incurred and all other notices of any kind,
all defenses which may be available by virtue of any valuation, stay, moratorium
or other similar law now or hereafter in effect, any right to require the
marshalling of assets of Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, Guarantor agrees to the
provisions of any document, agreement or other instrument evidencing, securing
or otherwise executed in connection with any Obligations and agrees that the
obligations of Guarantor hereunder shall not be released or discharged, in whole
or in part, or otherwise affected by: (i) the failure of Lender to assert any
claim or demand or to enforce any right or remedy against Borrower; (ii) any
extensions or renewals of any Obligations; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or provisions of any document,
agreement or other instrument evidencing, securing or otherwise executed in
connection with the Obligations; (iv) the substitution or release of any person
or entity primarily or secondarily liable for the Obligations; (v) the adequacy
of any rights or remedies Lender may have against any collateral or other means
of obtaining repayment of the Obligations; (vi) the impairment of any collateral
securing the Obligations, including without limitation the failure to perfect or
preserve any rights or remedies Lender might have in such collateral or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral; or (vii) any other act or omission which might in any manner or to
any extent vary the risk of Guarantor or otherwise operate as a release or
discharge of Guarantor, all of which may be done without notice to Guarantor.
7. Proceedings on Default. Upon the failure of Borrower to promptly and
completely make any required payment and performance of the Obligations, Lender
may, at its option: (a) proceed directly and at once without notice of such
default, against Guarantor to collect and recover the full amount of the
liability hereunder, or any portion thereof, without proceeding against Borrower
or any other person, or endorser, surety or guarantor, or foreclosing upon,
selling, or otherwise disposing of, or enforcing, or collecting or applying any
property, real or personal, Lender may then has as security for the Obligations,
and without enforcing or proceeding under any other guaranty; (b) sell the real
and personal property Lender may then have as security for the Obligations under
the power of sale contained in any mortgage deed, security agreement or similar
instrument pursuant to which such property is held or to which such property is
subject or sell such property through judicial foreclosure, as Lender may elect,
notice of any such election being expressly waived by Guarantor, and proceed
against Guarantor for an amount equal to the difference between the net proceeds
of such sale to Lender and the amount of the Obligations then due and owing.
Nothing herein shall prohibit Lender from exercising its rights against
Guarantor, any other guarantor, endorser, or surety, the security, if any, for
the Obligations, and Borrower simultaneously, jointly and/or severally.
8. Representations. Guarantor represents and warrants to Lender that this
Guaranty does not violate the provisions of any document, agreement or other
instrument by which Guarantor is bound; no consent or authorization is required
as a condition to the execution of this Guaranty; Guarantor is fully aware of
the financial condition of Borrower; Guarantor delivers this Guaranty based
solely upon Guarantor's own independent investigation and understanding of the
transaction of which this Guaranty is a part and in no part upon any
representation or statement of Lender with respect thereto; Guarantor is in a
position to and hereby assumes full responsibility for obtaining any additional
information concerning Borrower's financial condition or business operations as
Guarantor may deem material to his obligations hereunder and Guarantor is not
relying upon, nor expecting Lender to furnish Guarantor with, any information in
Lender's possession concerning Borrower's financial condition or business
operations. Guarantor acknowledges and agrees that he hereby knowingly accepts
the full range of risk encompassed within a contract of "continuing guaranty",
which risk includes, without limitation, the possibility that Borrower will
incur or contract for additional indebtedness for which Guarantor will be liable
hereunder.
9. Independent Obligation. The obligations of Guarantor hereunder shall be
absolute and unconditional and are independent of the obligations of Borrower or
of any other person, endorser, surety or guarantor.
10. Bankruptcy. All of the Obligations shall, at the option of Lender,
forthwith become due and payable if there shall be filed against Borrower a
petition in bankruptcy or for insolvency proceedings or for reorganization,
dissolution or liquidation, or for appointment of a receiver or trustee, or if
Borrower makes an assignment for the benefit of creditors. This Guaranty shall
remain in full force and effect, without abatement, until the Obligations have
been paid or performed in full and all other obligations guaranteed hereunder
have been performed to the satisfaction of Lender, it being expressly understood
and agreed to by Guarantor that this Guaranty shall continue to be effective or
shall be reinstated, as the case may be, if at any time payment, in whole or in
part, of any of the Obligations is rescinded, invalidated, declared to be
fraudulent or preferential, set aside or must otherwise be restored or returned
by Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Borrower all as though such payment had not been made, to
Borrower or a trustee, receiver or any other party. Guarantor understands and
agrees that in the event Lender is required to so return all or any portion of a
payment received from Borrower, Guarantor shall be required to pay Lender for
such amount.
11. Unenforceability of Obligations Against Borrower. If for any reason
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on Guarantor to the same extent as if Guarantor at all
times had been the principal obligor on all such Obligations. In the event that
acceleration of the time for payment of the Obligations is stayed upon the
insolvency, bankruptcy or reorganization of Borrower or for any other reason,
all such amounts otherwise subject to acceleration under the terms of any
document, agreement or other instrument evidencing, securing or otherwise
executed in connection with any of the Obligations shall be immediately due and
payable by Guarantor.
12. Guarantor's Solvency. Guarantor represents and warrants to the Lender
that (both before and after giving effect to the transactions contemplated in
this Guaranty) he is solvent on a going concern basis, and has assets having a
fair value in excess of the amount required to pay his probable liabilities on
his existing debts as they become absolute and matured, and has, and will have,
access to the adequate capital for the conduct of his business and the ability
to pay his debts from time to time incurred therewith as such debts mature.
13. Payments. Guarantor covenants and agrees that the Obligations will be
paid strictly in accordance with their respective terms regardless of any law,
regulation or order now or hereinafter in effect in any jurisdiction affecting
any of such terms of the rights of the Lender with respect thereto. Without
limiting the generality of the foregoing, Guarantor's obligations hereunder with
respect to any Obligation shall not be discharged by a payment in a currency
other than Deutsche Marks or at a place other than the place specified for the
payment of the Obligations, whether pursuant to a judgment or otherwise, to the
extent that the amount so paid on conversion to Deutsche Marks and transferred
to the Lender at its main office under normal banking procedures does not yield
the amount of Deutsche Marks dollars due thereunder.
14. Further Assurances. Guarantor agrees that it will provide to Lender
information relating to the financial condition and business operations of
Guarantor as Lender may reasonably request.
15. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and his heirs, executors, personal representatives, successors and assigns, and
shall inure to the benefit of and be enforceable by Lender and its successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, Lender may assign or otherwise transfer any document, agreement or
other instrument held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participation in any interest therein
to any other Person or entity, and such other person or entity shall thereupon
become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all rights in respect thereof
granted to Lender herein.
16. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Lender. No failure on the part
of Lender to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise of any other right.
17. Notices. All notices, requests, demands, and other communications
called for hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when delivered
by hand or mailed first class mail postage prepaid or, in the case of telecopy
or facsimile notice, when transmitted, answer back received, addressed as set
forth above, or at such address as either party may designate in writing.
18. Joint and Several Obligations. If this Guaranty is now, or hereafter
shall be, signed by more than one Person, it shall be the joint and several
obligation of all such persons (including, without limitation, all makers,
endorsers, Guarantor and sureties, if any) and shall be binding on all such
persons and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
19. Governing Law; Consent to Jurisdiction. 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 New Jersey.
Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of the State of New Jersey or any Federal Court sitting
therein and consents to the non-exclusive jurisdiction of such court and to
service of process in any such suit being made upon Guarantor by mail at the
address specified above. Guarantor hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court or that such
suit was brought in an inconvenient court.
20. Termination. This Guaranty shall remain in full force and effect,
without abatement, until the Obligations have been paid or performed in full and
all other obligations guaranteed hereunder have been performed to the
satisfaction of Lender.
21. Amendments and Modifications. The provisions of this Guaranty shall
extend and be applicable to all renewals, amendments, extensions and
modifications of the Obligations and the documents, agreements and other
instruments evidencing, securing or otherwise executed in connection with the
Obligations, and all references to the Obligations and such documents,
agreements or instruments shall be deemed to include any renewal, extension,
amendment or modification thereof.
22. Miscellaneous. This Guaranty constitutes the entire agreement of
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other document, agreement or other instrument and this Guaranty shall be
in addition to any other guaranty of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. All section headings
in this Guaranty are included for convenience of reference only and shall not
constitute a part of this Guaranty for any other purpose. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the singular
and plural forms of the terms defined.
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the date
first set forth above.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
PROMISSORY NOTE
4,000,000 DM December 12, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, Prime Core Holding AG (the
"Borrower"), hereby unconditionally promises to pay to the order of Finca
Consulting, Inc., a Colorado corporation (the "Lender"), at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,President, in Deutsche
Marks, the lawful money of the Federal Republic of Germany, and in immediately
available funds, the principal amount of the lesser of (i) 4,000,000 DM or (ii)
the aggregate unpaid principal amount of all Loans made by the Lender to the
undersigned and accrued interest, if any, on or before the second anniversary
date hereof as set forth in Section 1.1 of the Revolving Credit Agreement, dated
as of the date hereof, between the undersigned and the Lender (the "Credit
Agreement"). Capitalized terms used herein shall have the same meanings as set
forth in the Credit Agreement, unless otherwise defined herein.
The undersigned further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from the date hereof
until such amount shall be paid (whether at the stated maturity, by acceleration
or otherwise) on the dates and at the applicable rates per annum as provided in
Section 1.5 of the Credit Agreement.
If any payment on this Note becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Note referred to in the Credit Agreement and is entitled
to the benefits thereof and is subject to the terms and conditions provided
therein.
Except as expressly provided herein, the undersigned hereby waives
presentation, demand, protest and all other notices of any kind.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New Jersey without regard to principles of conflicts of law.
BORROWER:
PRIME CORE HOLDING AG
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
UNLIMITED CONTINUING GUARANTY AGREEMENT
This UNLIMITED CONTINUING GUARANTY AGREEMENT (the "Guaranty") is made as of
this 12th day of December, 1997, by ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual having an
address at Am Abelshof 12 D-47445 Moers-Repelen, Germany and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
an individual having an address at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇
(sometimes hereinafter referred to as the "Guarantors"), in favor and for the
benefit of Finca Consulting, Inc., a Colorado corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, Lender has agreed to make a loan to Prime Core Holding AG, a
German corporation with its chief executive office located at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Borrower") in the principal amount of FOUR MILLION
DEUTSCHE MARKS (4,000,000 DM) (the "Loan"); and
WHEREAS, the Loan is evidenced by a certain promissory note dated of even
date herewith from Borrower in favor of Lender (the "Note"); and
WHEREAS, Guarantors are officers, directors and the owners of Borrower and,
as such, have and will derive substantial benefits from the making of such
loans, advances and extensions of credit to Borrower by Lender; and
WHEREAS, in consideration of such benefits, Guarantors have agreed to
guarantee the payment and performance of Borrower's obligations to Lender,
NOW, THEREFORE, Guarantors, jointly and severally for all purposes under
this Agreement, (hereinafter the Guarantors are referred to collectively as the
"Guarantor") agree as follows:
1. Guaranty of Payment and Performance. Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Lender the full and punctual
payment and performance of any and all loans, advances, indebtedness,
liabilities, obligation, covenants or duties of Borrower to Lender of any kind
or nature, but only arising under the Loan, whether in whole or in part, whether
created directly by Lender or acquired by assignment, purchase, discount or
otherwise, whether any of the foregoing are direct or indirect, joint or
several, absolute or contingent, due or to become due, now existing or hereafter
arising, whether under any present or future document, agreement or other
instrument, and whether or not evidenced by a writing and specifically
including, but not being limited to, unpaid principal, plus all accrued and
unpaid interest thereon, together with all fees, expenses, commissions, charges,
penalties and other amounts owing by or chargeable to Borrower under the Note
and any other Loan Document related thereto (collectively, the "Obligations"),
as and when the same shall become due and payable, whether at maturity, by
acceleration or otherwise.
2. Maximum Guaranteed Amount. Notwithstanding any other provision of this
Guaranty to the contrary, if the obligations of Guarantor hereunder would
otherwise be held or determined by a court of competent jurisdiction in any
action or proceeding involving any state corporate law or any state or Federal
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other law affecting the rights or creditors generally, to be void, invalid or
unenforceable to any extent on account of the amount of Guarantor's liability
under this Guaranty, then notwithstanding any other provision of this Guaranty
to the contrary, the amount of liability shall, without any further action by
Guarantor or any other person, be automatically limited and reduced to the
highest amount which is valid and enforceable as determined in action or
proceeding.
3. Continuing Nature. This Guaranty is a primary and original obligation of
Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty
of payment and performance and not of collectibility and is in no way
conditioned or contingent upon any action or omission by Lender, including any
requirement that Lender first attempt to collect any of the Obligations from
Borrower or resort to any security therefor, or upon any other action,
occurrence, or circumstance whatsoever other than the failure of Borrower to
promptly and completely make any payment due to Lender in respect to the
Obligations as and when the same become due and payable, whether at maturity, by
acceleration or otherwise. This Guaranty is in addition to, and not in
substitution for or in reduction of, any other guaranty by Guarantor or any
other guarantor in favor of Lender. This Guaranty shall be continuing and shall
not be discharged, impaired or affected by (i) the power or authority or lack
thereof of Borrower to incur or contract for the Obligations or to execute,
acknowledge or delivery any document, agreement or other instrument evidencing,
securing or otherwise executed in connection with the Obligations; (ii) the
regularity or irregularity, validity or invalidity, or enforceability or
unenforceability of the Obligations; (iii) any defenses or counterclaims
whatsoever that Borrower may or might have to the payment or performance of the
Obligations or to the assertion of a default under any document, agreement or
other instrument evidencing, securing or otherwise executed in connection with
the Obligations including, but not limited to, lack of consideration, statute of
frauds, infancy, breach of warranty, lender liability, usury, fraud and statute
of limitations; (iv) the existence or non-existence of Borrower as a legal
entity; (v) the transfer by Borrower of all or any part of the property securing
the Obligations except by the permitted assumption; (vi) any right of setoff,
counterclaim or defense (other than the payment and performance of the
Obligations in full) that Guarantor may or might have to its respective
undertakings, liabilities and obligations under this Guaranty, each and every
such defense being hereby waived by Guarantor; or (vii) the inability of Lender
to claim any amount of interest, fees, costs, or charges from Borrower pursuant
to Section 506(b) of the United States Bankruptcy Code, as amended.
4. Guarantor's Agreement to Pay. Guarantor further agrees, as the principal
obligor and not as a guarantor or surety only, to pay to Lender, on demand, all
costs and expenses (including court costs and legal expenses) incurred or
expended by Lender in connection with the Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
Guaranty from the time such amounts become due until payment, at the rate per
annum equal to the rate of interest charged by the Lender pursuant to the Note,
including the increased default rate of interest; provided, however, that if
such interest exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted amount.
5. Unlimited Guaranty. The liability of Guarantor hereunder shall be
unlimited.
6. Waivers by Guarantor; Lender's Freedom to Act. Guarantor agrees that the
Obligations will be paid and performed strictly in accordance with their
representative terms regardless of law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of Lender
with respect thereto. Guarantor waives presentment, demand, protest, notice of
acceptance, notice of obligations incurred and all other notices of any kind,
all defenses which may be available by virtue of any valuation, stay, moratorium
or other similar law now or hereafter in effect, any right to require the
marshalling of assets of Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, Guarantor agrees to the
provisions of any document, agreement or other instrument evidencing, securing
or otherwise executed in connection with any Obligations and agrees that the
obligations of Guarantor hereunder shall not be released or discharged, in whole
or in part, or otherwise affected by: (i) the failure of Lender to assert any
claim or demand or to enforce any right or remedy against Borrower; (ii) any
extensions or renewals of any Obligations; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or provisions of any document,
agreement or other instrument evidencing, securing or otherwise executed in
connection with the Obligations; (iv) the substitution or release of any person
or entity primarily or secondarily liable for the Obligations; (v) the adequacy
of any rights or remedies Lender may have against any collateral or other means
of obtaining repayment of the Obligations; (vi) the impairment of any collateral
securing the Obligations, including without limitation the failure to perfect or
preserve any rights or remedies Lender might have in such collateral or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral; or (vii) any other act or omission which might in any manner or to
any extent vary the risk of Guarantor or otherwise operate as a release or
discharge of Guarantor, all of which may be done without notice to Guarantor.
7. Proceedings on Default. Upon the failure of Borrower to promptly and
completely make any required payment and performance of the Obligations, Lender
may, at its option: (a) proceed directly and at once without notice of such
default, against Guarantor to collect and recover the full amount of the
liability hereunder, or any portion thereof, without proceeding against Borrower
or any other person, or endorser, surety or guarantor, or foreclosing upon,
selling, or otherwise disposing of, or enforcing, or collecting or applying any
property, real or personal, Lender may then has as security for the Obligations,
and without enforcing or proceeding under any other guaranty; (b) sell the real
and personal property Lender may then have as security for the Obligations under
the power of sale contained in any mortgage deed, security agreement or similar
instrument pursuant to which such property is held or to which such property is
subject or sell such property through judicial foreclosure, as Lender may elect,
notice of any such election being expressly waived by Guarantor, and proceed
against Guarantor for an amount equal to the difference between the net proceeds
of such sale to Lender and the amount of the Obligations then due and owing.
Nothing herein shall prohibit Lender from exercising its rights against
Guarantor, any other guarantor, endorser, or surety, the security, if any, for
the Obligations, and Borrower simultaneously, jointly and/or severally.
8. Representations. Guarantor represents and warrants to Lender that this
Guaranty does not violate the provisions of any document, agreement or other
instrument by which Guarantor is bound; no consent or authorization is required
as a condition to the execution of this Guaranty; Guarantor is fully aware of
the financial condition of Borrower; Guarantor delivers this Guaranty based
solely upon Guarantor's own independent investigation and understanding of the
transaction of which this Guaranty is a part and in no part upon any
representation or statement of Lender with respect thereto; Guarantor is in a
position to and hereby assumes full responsibility for obtaining any additional
information concerning Borrower's financial condition or business operations as
Guarantor may deem material to his obligations hereunder and Guarantor is not
relying upon, nor expecting Lender to furnish Guarantor with, any information in
Lender's possession concerning Borrower's financial condition or business
operations. Guarantor acknowledges and agrees that he hereby knowingly accepts
the full range of risk encompassed within a contract of "continuing guaranty",
which risk includes, without limitation, the possibility that Borrower will
incur or contract for additional indebtedness for which Guarantor will be liable
hereunder.
9. Independent Obligation. The obligations of Guarantor hereunder shall be
absolute and unconditional and are independent of the obligations of Borrower or
of any other person, endorser, surety or guarantor.
10. Bankruptcy. All of the Obligations shall, at the option of Lender,
forthwith become due and payable if there shall be filed against Borrower a
petition in bankruptcy or for insolvency proceedings or for reorganization,
dissolution or liquidation, or for appointment of a receiver or trustee, or if
Borrower makes an assignment for the benefit of creditors. This Guaranty shall
remain in full force and effect, without abatement, until the Obligations have
been paid or performed in full and all other obligations guaranteed hereunder
have been performed to the satisfaction of Lender, it being expressly understood
and agreed to by Guarantor that this Guaranty shall continue to be effective or
shall be reinstated, as the case may be, if at any time payment, in whole or in
part, of any of the Obligations is rescinded, invalidated, declared to be
fraudulent or preferential, set aside or must otherwise be restored or returned
by Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Borrower all as though such payment had not been made, to
Borrower or a trustee, receiver or any other party. Guarantor understands and
agrees that in the event Lender is required to so return all or any portion of a
payment received from Borrower, Guarantor shall be required to pay Lender for
such amount.
11. Unenforceability of Obligations Against Borrower. If for any reason
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on Guarantor to the same extent as if Guarantor at all
times had been the principal obligor on all such Obligations. In the event that
acceleration of the time for payment of the Obligations is stayed upon the
insolvency, bankruptcy or reorganization of Borrower or for any other reason,
all such amounts otherwise subject to acceleration under the terms of any
document, agreement or other instrument evidencing, securing or otherwise
executed in connection with any of the Obligations shall be immediately due and
payable by Guarantor.
12. Guarantor's Solvency. Guarantor represents and warrants to the Lender
that (both before and after giving effect to the transactions contemplated in
this Guaranty) he is solvent on a going concern basis, and has assets having a
fair value in excess of the amount required to pay his probable liabilities on
his existing debts as they become absolute and matured, and has, and will have,
access to the adequate capital for the conduct of his business and the ability
to pay his debts from time to time incurred therewith as such debts mature.
13. Payments. Guarantor covenants and agrees that the Obligations will be
paid strictly in accordance with their respective terms regardless of any law,
regulation or order now or hereinafter in effect in any jurisdiction affecting
any of such terms of the rights of the Lender with respect thereto. Without
limiting the generality of the foregoing, Guarantor's obligations hereunder with
respect to any Obligation shall not be discharged by a payment in a currency
other than Deutsche Marks or at a place other than the place specified for the
payment of the Obligations, whether pursuant to a judgment or otherwise, to the
extent that the amount so paid on conversion to Deutsche Marks and transferred
to the Lender at its main office under normal banking procedures does not yield
the amount of Deutsche Marks dollars due thereunder.
14. Further Assurances. Guarantor agrees that it will provide to Lender
information relating to the financial condition and business operations of
Guarantor as Lender may reasonably request.
15. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and his heirs, executors, personal representatives, successors and assigns, and
shall inure to the benefit of and be enforceable by Lender and its successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, Lender may assign or otherwise transfer any document, agreement or
other instrument held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participation in any interest therein
to any other Person or entity, and such other person or entity shall thereupon
become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all rights in respect thereof
granted to Lender herein.
16. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Lender. No failure on the part
of Lender to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise of any other right.
17. Notices. All notices, requests, demands, and other communications
called for hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when delivered
by hand or mailed first class mail postage prepaid or, in the case of telecopy
or facsimile notice, when transmitted, answer back received, addressed as set
forth above, or at such address as either party may designate in writing.
18. Joint and Several Obligations. If this Guaranty is now, or hereafter
shall be, signed by more than one Person, it shall be the joint and several
obligation of all such persons (including, without limitation, all makers,
endorsers, Guarantor and sureties, if any) and shall be binding on all such
persons and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
19. Governing Law; Consent to Jurisdiction. 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 New Jersey.
Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of the State of New Jersey or any Federal Court sitting
therein and consents to the non-exclusive jurisdiction of such court and to
service of process in any such suit being made upon Guarantor by mail at the
address specified above. Guarantor hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court or that such
suit was brought in an inconvenient court.
20. Termination. This Guaranty shall remain in full force and effect,
without abatement, until the Obligations have been paid or performed in full and
all other obligations guaranteed hereunder have been performed to the
satisfaction of Lender.
21. Amendments and Modifications. The provisions of this Guaranty shall
extend and be applicable to all renewals, amendments, extensions and
modifications of the Obligations and the documents, agreements and other
instruments evidencing, securing or otherwise executed in connection with the
Obligations, and all references to the Obligations and such documents,
agreements or instruments shall be deemed to include any renewal, extension,
amendment or modification thereof.
22. Miscellaneous. This Guaranty constitutes the entire agreement of
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other document, agreement or other instrument and this Guaranty shall be
in addition to any other guaranty of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. All section headings
in this Guaranty are included for convenience of reference only and shall not
constitute a part of this Guaranty for any other purpose. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the singular
and plural forms of the terms defined.
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the date
first set forth above.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
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