THIS DOCUMENT IS A COPY OF THE EXHIBIT FILED ON OCTOBER 24, 1996
PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
LIMITED NON-RECOURSE GUARANTY AND SURETYSHIP AGREEMENT
DATED: October 10, 1996
To induce National Canada Finance Corp. (the "Lender") to enter into that
certain Amended and Restated Promissory Note (the "Restated Note") and related
restructuring and settlement documents (together with the Restated Note, the
"Restructuring Documents") dated the date hereof by and among the Lender and
Delta Computec Inc. (The "Borrower"), and to secure the observance, payment, and
performance of the Security Liabilities (as defined below), and with full
knowledge that the Lender would not enter into the Restructuring Documents
without this Limited Guaranty and Suretyship Agreement (together with any
amendments or modifications hereto in effect from time to time, the "Guaranty"),
which shall be a contract of suretyship, the Guarantor (as defined below),
intending to be legally bound hereby, agrees as follows:
BACKGROUND
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NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as
follows:
a. Liabilities Secured. The Guarantor hereby guarantees the full, prompt, and
unconditional performance of the Security Liabilities (as defined below),
when and as the same shall become due, whether at the stated maturity date,
upon the occurrence of an Event of Default under the Restated Note, by
acceleration, or otherwise. This Guaranty is a primary obligation of the
Guarantor and shall be a continuing inexhaustible Guaranty without
limitation except that the Lender's recourse against the Guarantor shall be
limited to amounts that can be realized by the Lender with respect to the
Collateral (hereafter defined).
b. Limitation of Guarantor's Liability. Notwithstanding anything to the
contrary contained herein, Lender's recourse against Guarantor under this
Guaranty shall be solely limited to foreclosing and/or exercising its other
remedies against the Collateral under the Pledge Security Agreement.
c. Definitions. As used herein, the following terms shall have the following
meanings:
i. Collateral. The term "Collateral" means all property of the Guarantor
subject to a pledge, lien or other encumbrance in favor of the Lender
under the Pledge Security Agreement.
ii. Guarantor. The term "Guarantor" means Xxxxxx X. Xxxxxxx XX.
iii. DCI Dollar Liabilities. The term "DCI Dollar Liabilities" means all
Indebtedness of the Borrower as that term is defined in the NCFC Note.
iv. Security Liabilities. The term "Security Liabilities" shall have the
meaning given to such term in the NCFC Note.
v. Loan Documents. The term "Loan Documents" means this Guaranty, the
Restructure Documents and any and all credit accommodations, notes,
loan agreements, and any other agreements and documents, now or
hereafter existing, creating, evidencing, guarantying, securing or
relating to any or all of the DCI Dollar Liabilities, together with
all amendments, modifications, renewals, or extensions thereof.
vi. Liabilities. The term "Liabilities" means, collectively, the DCI
Dollar Liabilities and the Security Liabilities.
vii. NCFC Note. The term "NCFC Note" shall have the meaning given to such
term in the Pledge Security Agreement.
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viii. Pledge Security Agreement. The term "Pledge Security Agreement" shall
mean that certain Pledge Security Agreement dated the date hereof by
and between the Lender and the Guarantor.
d. Representations and Warranties; Covenants. The Guarantor covenants,
represents and warrants as of the date hereof and at all times hereafter
until the Security Liabilities are fully satisfied and performed, that the
accommodations made by the Lender to the Borrower under the Loan Documents
will result in material benefits to the Guarantor. This Guaranty was
entered into by the Guarantor for commercial purposes.
e. Events of Default. The occurrence of any one of the following shall
constitute an Event of Default under this Guaranty:
i. Breach. A breach by the Guarantor of any term, obligation, provision,
covenant, representation or warranty arising under this Guaranty;
ii. Defaults Under Other Loan Document(s). Any one or more Event(s) of
Default occurs under the Restated Note;
iii. Failure of the Borrower to Pay Dollar Liabilities. The Borrower fails
to satisfy the DCI Dollar Liabilities on or before October 10, 1999.
f. Remedies.
i. Acceleration of Liabilities; Rights of Lender. Upon the occurrence of
an Event of Default described in Section E hereof at the Lender's sole
option, all Security Liabilities shall immediately become due in full,
all without protest, presentment, demand or further notice of any kind
to the Guarantor, all of which are expressly waived. Upon and
following an Event of Default, the Lender may, at its option, exercise
any and all rights and remedies it has under this Guaranty.
ii. Remedies Cumulative; No Waiver. The rights, powers and remedies of the
Lender provided in this Guaranty are cumulative and concurrent, and
are not exclusive of any right, power or remedy available to the
Lender. No failure or delay on the part of the Lender in the exercise
of any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise preclude any other or further
exercise thereof, or the exercise of any other right, power or remedy.
iii. Continuing Enforcement of the Loan Documents. If, after satisfaction
of all or any part of the Security Liabilities, the Lender is
compelled or agrees, for settlement purposes, to surrender such
payment to any person or entity for any reason, then this Guaranty and
the other Loan Documents shall continue in full force and effect or be
reinstated, as the case may be. The provisions of this Paragraph shall
survive the termination of this Guaranty and the other Loan Documents
and shall be and remain effective notwithstanding the payment of the
Liabilities, the cancellation of the Guaranty or any other Loan
Document, the release of any security interest, lien or encumbrance
securing the Liabilities or any other action which the Lender may have
taken in reliance upon its receipt of such payment.
2
Page 134 of 207 Pages
g. Miscellaneous.
i. Notices. Notices and communications under this Guaranty shall be in
writing and shall be given by: (i) hand-delivery, (ii) first class
mail (postage prepaid) or (iii) reliable overnight commercial courier
(charges prepaid), to the addresses set forth in this Guaranty. Notice
by overnight courier shall be deemed to have been given and received
on the date scheduled for delivery. Notice by mail shall be deemed to
have been given and received three (3) calendar days after the date
first deposited in the United States Mail. Notice by hand delivery
shall be deemed to have been given and received upon delivery. A party
may change its address by giving written notice to the other party as
specified herein.
ii. Governing Law. This Guaranty shall be construed in accordance with and
governed by the substantive laws of the State of New York without
reference to conflict of laws principles.
iii. Integration; Amendment; No Third Party Beneficiary. This Guaranty and
the other Loan Documents constitute the sole agreement of the parties
with respect to the subject matter hereof and thereof and supersede
all oral negotiations and prior writings with respect to the subject
matter hereof and thereof. No amendment of this Guaranty and no waiver
of one or more of the provisions hereof shall be effective unless set
forth in writing and signed by the parties hereto. The Guarantor and
the Lender do not intend any benefits of this Guaranty to inure to any
third party and no third party (including the Borrower) shall have any
status, right or entitlement under this Guaranty.
iv. Successors and Assigns. This Guaranty (i) shall be binding upon the
Guarantor and the Lender and, where applicable, their respective
heirs, executors, administrators, successors and permitted assigns,
and (ii) shall inure to the benefit of the Guarantor and the Lender
and, where applicable, their respective heirs, executors,
administrators, successors and permitted assigns; provided, however,
that the Guarantor may not assign his rights or obligations hereunder
or any interest herein without the prior written consent of the
Lender, and any such assignment or attempted assignment by the
Guarantor shall be void and of no effect with respect to the Lender.
The Lender may from time to time sell or assign, in whole or in part,
or grant participations in some or all of the Loan Documents and/or
the obligations evidenced thereby. The Guarantor authorizes the Lender
to provide information concerning the Guarantor to any prospective
purchaser, assignee or participant.
v. Severability and Consistency. The illegality, unenforceability or
inconsistency of any provision of this Guaranty or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of
this Guaranty or any instrument or agreement required hereunder. The
Loan Documents are intended to be consistent. However, in the event of
any inconsistencies among any of the Loan Documents, such
inconsistency shall not affect the validity or enforceability of any
Loan Document. The Guarantor agrees that in the event of any
inconsistency or ambiguity in any of the Loan Documents, the Loan
Documents shall not be construed against any one party but shall be
interpreted consistent with the Lender's policies and procedures.
vi. Consent to Jurisdiction and Service of Process. The Guarantor hereby
consents that: (i) any action or proceeding against such Guarantor be
commenced and maintained in any court within any County in the State
of New York or in the United States District Court for any District of
New York by service of process on such owner, partner and/or officer;
and (ii) such courts shall have jurisdiction with respect to the
subject matter hereof and the person of the Guarantor and all
Collateral for the Liabilities. The Guarantor agrees that any action
brought by the Guarantor shall be commenced and maintained only in a
court in the United States District Court for the District of New York
or in any court within any County in the State of New York.
Page 135 of 207 Pages
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered to
the Lender by the Guarantor on the day and year first above written.
/s/ [ILLEGIBLE] /s/ Xxxxxx X. Xxxxxxx XX
------------------------------ ------------------------------------
WITNESS XXXXXX X. XXXXXXX XX
c/o JML Optical
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
NATIONAL CANADA FINANCE CORP.
By: /s/ E. Xxxx Xxxxxxx
------------------------------
E. Xxxx Xxxxxxx
GroupVice President
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
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