EXHIBIT 10.34
COLLATERALIZED GUARANTY (ARBITRATION)
TO: Deutsche Financial Services Corporation
In consideration of financing provided or to be provided by you to
xxxxx.xxx, inc., a Delaware corporation ("Dealer"), and for other good and
valuable consideration received, we jointly, severally, unconditionally and
absolutely guaranty to you, from property held separately, jointly or in
community, the immediate payment of all current and future liabilities owed by
Dealer to you when due, whether such liabilities are direct or indirect
("Liabilities"). We will pay you on demand the full amount of all sums owed by
Dealer to you, together with all costs and expenses (including, without
limitation, reasonable attorneys' fees). We also indemnify and hold you harmless
from and against all (a) losses, costs and expenses you incur and/or are liable
for (including, without limitation, reasonable attorneys' fees) and (b) claims,
actions and demands made by Dealer or any third party against you, which in any
way relate to any relationship or transaction between you and Dealer.
Our guaranty will not be affected by any: (a) change in the manner, place
or terms of payment or performance in any current or future agreement between
you and Dealer, the release, settlement or compromise of or with any party
liable for the payment or performance thereof or the substitution, release,
non-perfection, impairment, sale or other disposition of any security
thereunder; (b) change in Dealer's financial condition; (c) interruption of
relations between Dealer and you or us; (d) claim or action by Dealer against
you; and/or (e) increases or decreases in any credit you may provide to Dealer.
We will pay you even if you have not (i) notified Dealer that it is in default
of the Liabilities and/or that you have accelerated the payment of all or any
part of the Liabilities, or (ii) exercised any of your rights or remedies
against Dealer, any other person or any current or future security. This
Guaranty is assignable by you and will inure to the benefit of your assignee. If
Dealer hereafter undergoes any change in its ownership, identity or
organizational structure, this Guaranty will extend to all current and future
obligations owed to you by such new or changed legal entity.
We irrevocably waive: notice of your acceptance of this Guaranty,
presentment, demand, protest, nonpayment, nonperformance, any right of
contribution from other guarantors, dishonor, the amount of indebtedness of
Dealer outstanding at any time, the number and amount of advances made by you to
Dealer in reliance on this Guaranty and any claim or action against Dealer;
notice and hearing as to any prejudgment remedy; all other demands and notices
required by law; all rights of offset and counterclaims against you or Dealer;
all rights in, and notices or demands relating to, any security now or hereafter
securing any Liabilities (including, without limitation, all rights, notices or
demands directly or indirectly relating to the sale or other disposition of such
security or the manner of such sale or other disposition); all defenses to the
enforceability of this Guaranty (including, without limitation, fraudulent
inducement); and all of our present and future rights and remedies (a) of
subrogation to any of your rights or remedies against Dealer, (b) of
contribution, reimbursement, indemnification and restoration from Dealer and (c)
to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty. All our waivers herein will survive any termination
of this Guaranty.
To secure payment of all Liabilities and all our current and future debts to
you, whether under this Guaranty or any other current or future agreement, we
grant you a security interest in all our inventory, equipment, fixtures,
accounts, contract rights, chattel paper, instruments, reserves, documents and
general intangibles, whether now owned or hereafter acquired, all attachments,
accessories, accessions, substitutions and replacements thereto and all proceeds
thereof. All such assets are defined in the Uniform Commercial Code and referred
to herein as the "Collateral." Our principal place of business is located at:
00 Xxxxxx Xxx, Xxxxxxx, XX 0000
(Number and Street) (City, County, State, Zip Code)
and our business is conducted as a I___I SOLE PROPRIETORSHIP, I__I PARTNERSHIP,
IXXI CORPORATION, (check applicable term). We will immediately notify you of'
any change in our identity, name, form or ownership, principal place of business
or other business locations. AlI Collateral will be kept at our business
locations. We will immediately notify you if any Collateral is kept at any other
address. All Collateral will
remain free from all claims and liens superior to yours, unless otherwise
expressly agreed by you in writing. We will (a) only exhibit and sell Collateral
to buyers in the ordinary course of business and (b) not rent, demonstrate,
transfer or use any Collateral, without your prior written consent. We will
execute all documents you request to perfect your security interest in the
Collateral. We wilI deliver to you, immediately upon your request, and you may
retain the Certificate of Title or Statement of Origin issued for any
Collateral. We will immediately provide you with all information regarding us
that you from time to time request. All our financial information will
accurately represent our financial condition, and we acknowledge your reliance
thereon.
We will: (a) pay all taxes and fees assessed against us or the Collateral
when due; (b) immediately notify you of any loss, theft or damage to any
Collateral; (c) keep the Collateral insured for its full insurable value under a
property insurance policy, with a company acceptable to you and naming you an a
loss-payee; and (d) provide you with written evidence of such insurance coverage
and loss-payee clause. If we don't pay any taxes or fees or keep the Collateral
insured, you may pay such taxes and fees and insure the Collateral, and the
amounts paid will be (i) an additional debt owed by us to you and (ii) due and
payable immediately in full. You have an irrevocable license to enter our
business locations whenever you deem necessary without any notice to us, to (A)
account for and inspect all Collateral, (B) verify our compliance with this
Guaranty and (C) examine and copy our books and records related to the
Collateral.
We will be in default under this Guaranty if: we breach any terms,
warranties or representations contained herein or in any other agreement between
you and us; Dealer breaches any terms, warranties or representations contained
in any agreement between Dealer and you; any representation , statement, report
or certificate made or delivered by us or Dealer to you is not accurate; we
don't pay any of our debt to you when due and payable hereunder or under any
other agreement between you and us; Dealer fails to pay any Liabilities
immediately when due; we abandon any Collateral; we or Dealer are or become in
default in the payment of any debt owed to any third party; a money judgment
issues against us or Dealer; an attachment,. sale or seizure issues or is
executed against us, Dealer or any Collateral; the undersigned dies and our
business is operated as a sole proprietorship or partnership; Dealer dies and
Dealer's business is operated as a sole proprietorship or partnership; we or
Dealer cease or suspend business; we or Dealer make a general assignment for the
benefit of creditors; we or Dealer become insolvent or voluntarily or
involuntarily become subject to the Federal Bankruptcy Code, state insolvency
Iaws or any similar law; any receiver is appointed for any of our or Dealer's
assets; we or Dealer lose any franchise, permission, license or right to sell or
deal in an Collateral; or we or Dealer misrepresent our respective financial
condition or organizational structure. In event of a default:
(a) You may, at any time at your election, without notice or demand to us
do any one more of the following: declare all or any part of the debt
we owe you, whether contingent or noncontingent, immediately due and
payable, together with all costs and expenses of your collection
activity, including, without limitation, all attorney's fees; and
exercise any or all rights of a secured party under applicable law
(including, without limitation, the right to possess, transfer and
dispose of the Collateral).
(b) We will segregate and keep the Collateral in trust, in good order and
repair, for you and we will not exhibit, sell, further encumber,
otherwise dispose of or use any Collateral.
(c) Upon your oral or written demand, we will immediately deliver the
Collateral to you, in good order and repair, at a place specified by
you, together with all related documents; or you may, in your sole
discretion and without notice or demand to us, take immediate
possession of the Collateral together with all related documents.
(d) We waive and release: the benefit of all appraisal, exemption and
homestead laws; and all rights to notice or hearing prior to your
attachment, repossession, sequestration or seizure of any Collateral.
(e) We irrevocably appoint you or your agent as our Attorney-In-Fact to
do, in your sole discretion, any of the following: endorse our name on
any checks or other instruments received as payment for any
Collateral; sell or dispose of any Collateral; sell, assign, demand,
collect, receive, settle, extend or renew any amounts due on any
Collateral; and exercise any rights we have in the Collateral.
All your rights and remedies are cumulative. Your failure to exercise any of
your rights or remedies hereunder will not waive any of your rights or remedies
as to any past, current or future default.
If you conduct a private sale of any Collateral you possess by soliciting
bids from 10 or more dealers or distributors in that type of Collateral, any
sale by you of such Collateral in bulk or in parcels within 120 days of (a) your
taking possession and control of such Collateral or (b) when you are otherwise
authorized to sell such Collateral, whichever occurs last, to the bidder
submitting the highest cash bid therefor, is a commercially reasonable sale of
such Collateral. Commercially reasonable notice of any public or private sale is
given to us if you send us a notice of such sale at least 7 days prior to the
date of any public sale or the time after which a private sale will be made. The
purchase of any Collateral by a supplier, as provided in any agreement between
you and the supplier is a commercially reasonable disposition or sale of such
Collateral. If you dispose of any such Collateral other than as herein
contemplated, the commercial reasonableness of such disposition will be
determined in accordance with the laws of the state governing this Agreement. We
will (i) pay you even if any Collateral is defective or fails to conform to any
warranties extended by any third party, (ii) not assert against you any claim or
defense we have against any third party and (iii) indemnify and hold you
harmless against any claims or defenses asserted by any buyer of the Collateral
relating to the condition of, or any representations made about, any Collateral.
We waive all rights of offset we may have against you. We grant you an
irrevocable power of attorney to: execute or endorse on our behalf any checks,
financing statements, instruments, Certificates of Title and Statements of
Origin pertaining to the Collateral; supply any omitted information and correct
errors in any documents between you and us; do anything we are obligated to do
hereunder; initiate and settle any insurance claim pertaining to the Collateral;
and do anything to preserve and protect the Collateral and your rights and
interest therein. You may provide to any third party any credit, financial or
other information on us that you posses.
We have made an independent investigation of the financial condition of
Dealer and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Dealer
financial information which enables us to remain continuously informed of
Dealer's financial condition. This Guaranty will survive any federal and/or
state bankruptcy or insolvency action involving Dealer. We are solvent and our
execution of this Guaranty will not make us insolvent. If you are required in
any action involving Dealer to return or rescind any payment made to or value
received by you from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by you and notwithstanding any termination of this Guaranty or your
release of us. Any delay or failure by you, or your successors or assigns, in
exercising any of your rights or remedies hereunder will not waive any such
rights or remedies. This Guaranty supersedes all prior oral and written
agreements concerning the subject matter hereof. Any oral or other amendment or
waiver made or claimed to be made to this Guaranty that is not evidenced by a
written document signed by your and our authorized representatives will be null,
void and have no force or effect whatsoever. If any provision of this Guaranty
or its application is invalid or unenforceable, the remainder of this Guaranty
will not be impaired or affected and will remain binding and enforceable. If we
previously executed any guaranty or security agreement with you, this Agreement
will only amend and supplement such agreement(s). If the terms hereof conflict
with the terms of any such prior agreement(s), the terms of this Guaranty will
govern. We may terminate this Guaranty by a written notice to you, the
termination to be effective sixty (60) days after you receive and acknowledge
it, but the termination will not terminate our obligations hereunder arising
prior to the effective termination date. You will retain all of your rights,
interests and remedies hereunder until we have paid all our debts to you. The
meanings of all terms herein are equally applicable to both the singular and
plural forms of such terms.
BINDING ARBITRATION. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever (including, without limitation, all torts,
whether regarding negligence, breach of fiduciary duty, restraint of trade,
fraud, conversion, duress, interference, wrongful replevin, wrongful
sequestration, fraud in the inducement, or any other tort, all contract actions,
whether regarding express or implied terms, such as implied covenants of good
faith, fair dealing, and the commercial reasonableness of any collateral
disposition, or any other contract claim, all claims of deceptive trade
practices or lender liability, and all claims questioning the reasonableness or
lawfulness of any act), whether arising before or after the date of this
Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between you and us;
and/or (c) any other relationship, transaction or dealing between you and us
(collectively the "Disputes"), will be subject to and resolved by binding
arbitration.
All arbitration hereunder will be pursuant to either: (a) the Code of
Procedure in effect from time to time ("Code") of the National Arbitration Forum
("NAF"), currently located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000; or (b) the Commercial Arbitration Rules ("Rules") in effect from time to
time of the American Arbitration Association ("AAA"), currently located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. The party first filing any
claim for arbitration shall designate which arbitration procedures are to be
applied for all Disputes between and us, although if either the NAF or AAA is
dissolved, the procedures of the remaining arbitration body must be used. A copy
of the Code, Rules and any fee schedule of the NAF or AAA may be obtained by
contacting the NAF or AAA, as applicable. The parties agree that all arbitrators
selected shall be attorneys. The arbitrator(s) will decide if any inconsistency
exists between the Code, or Rules, as applicable, and the arbitration provisions
contained herein. If any such inconsistency exists, the arbitration provisions
contained herein will control and supersede the Code, or Rules, as applicable.
The site of all arbitration participatory hearings will be in the Division of
the Federal Judicial District of your branch office closest to Dealer. The laws
of the State of Massachusetts will govern this Guaranty; provided, however, that
the Federal Arbitration Act ("FAA"), to the extent inconsistent, will supersede
the laws of such state and govern. This Guaranty concerns transactions involving
commerce among the several states. All arbitration proceedings, including
testimony or evidence at hearings, will be kept confidential, although any award
or order rendered by the arbitrator(s) or director of arbitration pursuant to
the terms of this Guaranty may be entered as a judgment or order and enforced by
either party in any state or federal court having competent jurisdiction.
Nothing herein will be construed to prevent your or our use of bankruptcy,
receivership, injunction, repossession, replevin, claim and delivery,
sequestration, seizure, attachment, foreclosure, dation and/or any other
prejudgment or provisional action or remedy relating to any collateral for any
current or future debt owed by either party to the other. Any such action or
remedy will not waive your or our right to compel arbitration of any Dispute. If
either of us brings any other action for judicial relief with respect to any
Dispute, the party bringing such action will be liable for and immediately pay
all of the other party's costs and expenses (including attorneys' fees) incurred
to stay or dismiss such action and remove or refer such Dispute to arbitration.
If either of us brings or appeals an action to vacate or modify an arbitration
award and such party does not prevail, such party will pay all costs and
expenses, including attorneys' fees, incurred by the other party in defending
such action.
Any arbitration proceeding must be instituted: (a) with respect to any
Dispute for the collection of any debt owed by either party to the other, within
two (2) years after the date the last payment was received by the instituting
party; and (b) with respect to any other Dispute, within two (2) years after the
date the incident giving rise thereto occurred, whether or not any damage was
sustained or capable of ascertainment or either party knew of such incident.
Failure to institute an arbitration proceeding within such period will
constitute an absolute bar and waiver to the institution of any proceeding with
respect to such Dispute. Except as otherwise stated herein, all notices,
arbitration claims, responses, requests and documents will be sufficiently given
or served if mailed or delivered: (i) to us at our address specified below; and
(ii) to you at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, XX 00000, Attention:
General Counsel, or such other address as the parties may specify from time to
time in writing. No arbitration hereunder will include, by consolidation,
joinder or otherwise, any third party, unless such third party agrees to
arbitrate pursuant to the arbitration provisions contained herein and the Code,
or Rules, as applicable.
If the arbitration section of this Guaranty or its application is invalid
or unenforceable, any legal proceeding with respect to any Dispute will be tried
in a court of competent jurisdiction by a judge without a jury. We waive any
right to a jury trial in any such proceeding.
THIS GUARANTY CONTAINS BINDING ARBITRATION AND JURY WAIVER PROVISIONS.
Date: March 31, 1999
CORPORATE OR PARTNERSHIP GUARANTOR:
Elcom International,Inc.
(Name of Corporation or Partnership Guarantor)
By: /s/ X. X.Xxxxxxx
Print Name: X. X. Xxxxxxx
Address of Guarantor(s):
00 Xxxxxx Xxx
Norwood, MA 02062
