Exhibit 10(d)
GUARANTY AGREEMENT
GUARANTY AGREEMENT ("GUARANTY"), dated as of March 9, 1998, by
▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "GUARANTORS") in favor of
Guardian International, Inc., a Nevada corporation ("GUARDIAN"). Capitalized
terms used herein and not otherwise defined have the meaning ascribed to them in
the Asset Purchase Agreement (the "ASSET PURCHASE AGREEMENT") dated as of March
5, 1998, by and between Guardian and Gator Telecom, Inc., a Florida corporation
("SELLER").
W I T N E S S E T H :
WHEREAS, Seller and Guardian have entered into the Asset
Purchase Agreement providing for the sale by Seller to Guardian of substantially
all of the assets of Seller; and
WHEREAS, in order to provide Guardian further assurance as to
the payment and performance by Seller of its obligations under the Asset
Purchase Agreement and as a condition precedent to the obligations of Guardian
to consummate the Closing under the Asset Purchase Agreement, Guarantors,
simultaneously with the execution and delivery of the Asset Purchase Agreement,
have executed and delivered to Guardian this Guaranty;
NOW THEREFORE, as an essential inducement to Guardian to enter
into the Asset Purchase Agreement and in consideration of its so doing,
Guarantors hereby covenant and agree as follows:
ARTICLE 1
GUARANTY
Section 1.01 GUARANTY. (a) Guarantors hereby guarantee the
full and faithful performance by Seller of Seller's obligations under Article 9
of the Asset Purchase Agreement (the "GUARANTEED OBLIGATIONS").
(b) It is understood and agreed that the Guaranty by
Guarantors in clause (a) above is an unconditional and irrevocable guaranty of
payment and performance of the Guaranteed Obligations (not a guarantee of
collection) and may be enforced directly against Guarantors as a primary
obligation of Guarantors, and that any waiver by Guardian of any of the terms,
provisions or conditions of the Asset Purchase Agreement or any amendment or
modification of the Asset Purchase Agreement, or the granting of indulgences or
extension of time to Seller, may be made and done from time to time without
notice to Guarantors, and
Guarantors' obligations under this Guaranty will continue subject to such
waiver, amendment or modification, indulgence or extension of time.
Section 1.02 PAYMENT AND PERFORMANCE OF THE GUARANTEED
OBLIGATIONS. (a) If the Guaranteed Obligations are not paid or performed by
Seller when due (an "EVENT OF DEFAULT"), Guarantors will, upon written demand
made by Guardian upon Guarantors, immediately pay or cause the performance of
the same in accordance with the terms of the Asset Purchase Agreement. Payment
to Guardian will be made at such place and in such manner as directed by
Guardian, without any deduction whatsoever whether for counterclaim, setoff or
otherwise. In addition, Guarantors will be liable for, and will pay to Guardian,
all costs and expenses (including reasonable attorneys' fees and expenses) that
may be incurred in connection with the collection, or obtaining the performance,
of any of the Guaranteed Obligations or this Guaranty.
(b) Guarantors agree that all payments by Guarantors hereunder
will be without withholding of or deduction for any Taxes of any nature now or
hereafter imposed by any political jurisdiction or taxing authority to which
Guarantors are subject. Should any such payment made hereunder be subject to any
such Tax, Guarantors will pay such Tax to the appropriate taxing authority. Upon
the request of Guardian, Guarantors shall deliver to Guardian Tax receipts or
other documents evidencing payment in full of the applicable Taxes. If
Guarantors do not pay the appropriate Tax such that the Tax obligation is
imposed upon the payment Guardian receives hereunder, Guarantors shall pay to
Guardian such additional amount as may be necessary to enable Guardian to
receive an amount after payment of such Taxes on behalf of Guarantors equal to
the full payment obligation due from Guarantors hereunder; PROVIDED, HOWEVER,
the preceding provisions of this subparagraph (b) shall not be interpreted to
impose upon Guarantors an obligation for payment of Taxes properly assessed to
Guardian with respect to payments made by Guarantors which constitute income to
Guardian under applicable law.
Section 1.03 GUARANTY NOT DEPENDENT ON OTHER MATTERS. The
obligations of Guarantors hereunder will not be dependent upon or affected by:
(a) any change in the time, manner or place of payment of, or
in any other term of, the Guaranteed Obligations, or any other amendment,
modification or waiver of, or any consent to departure from, any provision of
the Asset Purchase Agreement or any agreement or document relating thereto;
(b) any other action or failure to take action by Guardian
with respect to the Guaranteed Obligations, the Asset Purchase Agreement or any
agreement or document relating thereto;
(c) any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization or arrangement of
Guarantor;
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(d) any provision of the law of any jurisdiction which
prevents Guarantors from performing the Guaranteed Obligations, or any event of
force majeure which might excuse the performance by Guarantors of the Guaranteed
Obligations; or
(e) any circumstances, whether or not referred to above, which
might otherwise constitute a defense available to, or a discharge of, Guarantors
in respect of this Guaranty.
Section 1.04 WAIVER BY GUARANTORS. Guarantors hereby
irrevocably waive:
(a) the right to assert in any action or proceeding upon this
Guaranty any set-off, counterclaim or other claim which Guarantors may have
against Seller or any other Person;
(b) except for matters of public policy which by law cannot be
waived by Guarantors, the benefit of all other principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof;
and
(c) any right to invoke the defense of force majeure in the
event that any event of force majeure might otherwise, under applicable law,
prevent Guarantors from performing, or excuse Guarantors from performing, any of
Guarantors' obligations under this Guaranty.
Section 1.05 CONTINUING LIABILITY OF GUARANTORS. In the event
the Guaranteed Obligations are paid in whole or in part by Guarantors, the
liability of Guarantors pursuant to this Guaranty will continue and remain in
full force and effect in the event that all or any part of any such payment is
recovered from Guardian as a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law. Guardian agrees to take all
actions which are reasonably appropriate to defend against any such attempt to
recover all or part of any such payment.
Section 1.06 SUBROGATION. Any and all rights of subrogation or
similar rights which Guarantors may have against Seller will be subordinate to
any and all rights which Guardian may have against Seller, and Guarantors will
not enforce any such right of subrogation or any similar right, and will not,
after a claim has been made pursuant hereto, claim from Seller any sum (whether
under any right of subrogation or otherwise) which may be owing to Guarantor or
have the benefit of any set-off or counterclaim against Seller, until all of the
Guaranteed Obligations and other obligations of Seller to Guardian have been
paid and performed in full.
ARTICLE 2
MISCELLANEOUS
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Section 2.01 NOTICES. All notices and other communications
required or permitted hereunder will be in writing and will be delivered
personally, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice will be deemed given when so
delivered personally, or sent by facsimile transmission or, if mailed, five days
after the date of deposit in the United States mails, as follows:
(A) If to Guardian, to:
Guardian International, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and Chief Executive
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Ext. 203
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(B) if to Guarantors, to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (813) ____________
Facsimile: (813) ____________
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Kass ▇▇▇▇▇▇, P.A.
Centre Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
Section 2.02 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES;
PRESERVATION OF REMEDIES. This Guaranty may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written
instrument signed by the parties hereto or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor will
any waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
in equity.
Section 2.03 BINDING EFFECT; NO ASSIGNMENT. This Guaranty will
be binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Guaranty is not assignable except by
operation of law, except that Guardian may assign its rights hereunder to any of
its affiliates that acquires the Alarm Service Assets.
Section 2.04 GOVERNING LAW. This Guaranty will be governed by
and construed in accordance with the laws of the State of Florida applicable to
agreements made and to be performed entirely within such State.
Section 2.05 SEVERABILITY OF PROVISIONS. If any provision or
any portion of any provision of this Guaranty or the application of any such
provision or any portion thereof to any person or circumstance, are held invalid
or unenforceable, the remaining portion of such provision and the remaining
provisions of this Guaranty, and the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those as to which it is held invalid or unenforceable, will not be
affected thereby.
Section 2.06 SETOFF. In addition to any rights now or
hereafter granted under applicable law, and not by way of limitation of any such
rights, upon and after the occurrence of an Event of Default, Guardian is hereby
authorized by Guarantors, at any time or from time to time, without notice to
Guarantors or to any other Person, any such notice being hereby expressly
waived, (a) to setoff and to appropriate and to apply any and all indebtedness
or obligations at any time held or owing by Guardian to or for the credit or the
account of Guarantors against and on account of the obligations and liabilities
of Guarantors to Guardian under this Guaranty including, but not limited to, all
claims of any nature or description arising out of or in connection with this
Guaranty, even though said obligations and liabilities, or any of them, will be
contingent or unmatured, and (b) pending any such setoff, appropriation or
application, to hold such amounts as collateral to secure such obligations and
liabilities and to refuse to pay any or all, as Guardian in its sole discretion
may select.
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Section 2.07 COUNTERPARTS. This Guaranty may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
Section 2.08 HEADINGS. The headings in this Guaranty are for
reference only, and will not affect the interpretation of this Guaranty.
IN WITNESS WHEREOF, the parties hereto have executed this
Guaranty as of the day and year first above written.
GUARDIAN INTERNATIONAL, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and
Chief Executive Officer
Guarantors:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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