GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT dated June 8, 1998, by TOTAL CONTROL PRODUCTS
INC., an Illinois corporation ("Guarantor"), is made and given to XXXXX
AUTOMATION & CONTROL ENGINEERING INC., a Virginia corporation ("Xxxxx").
RECITALS
A. Guarantor is the owner of all the outstanding shares of VA
ACQUISITION CORP., an Illinois corporation ("Subsidiary").
B. Subsidiary and Xxxxx have entered into the Acquisition Agreement
for the sale of assets dated June 8, 1998 (the "Agreement"). Section 3.2.6
of the Agreement provides that Guarantor will deliver this guaranty as a
condition to the consummation of the transactions contemplated under the
Agreement.
AGREEMENTS
1. In order to induce Xxxxx to consummate the Agreement and in
consideration of the material benefits to be derived by Guarantor from the
performance by Subsidiary under the Agreement, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby guarantees to Xxxxx the prompt and complete payment and
performance when due or when required to be performed of the obligations and
liabilities of Subsidiary arising under the Agreement and under the documents
delivered by Subsidiary pursuant to the Agreement (all such liabilities and
obligations being hereinafter collectively referred to as the "Liabilities")
to the extent that Subsidiary would be liable for such amounts. Guarantor
further agrees to pay any and all reasonable expenses which may be paid or
incurred by Xxxxx in enforcing its rights with respect to the Liabilities
and/or this Guaranty (including all reasonable legal fees and expenses), if
the Guarantor is found to be liable for such Liabilities.
2. Initially capitalized terms not otherwise defined herein shall have
the respective meanings set forth in the Agreement.
3. The obligations of Guarantor under this Guaranty shall remain in
full force and effect until all the Liabilities have been indefeasibly paid
and performed or until Subsidiary is no longer liable to Xxxxx under the
Agreement and payment of the Liabilities is not subject to rescission or
repayment under any bankruptcy, insolvency, reorganization, receivership,
arrangement or similar proceeding affecting Subsidiary. This is a guaranty
of payment and not of collection.
4. Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Liabilities and notice of or proof of
reliance by Xxxxx upon this Guaranty or acceptance of this Guaranty and the
Liabilities. Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or non-payment to or upon Subsidiary or
Guarantor with respect to the Liabilities. This Guaranty shall remain in
full force and effect
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and be binding in accordance with and to the extent of its terms upon the
Guarantor and its successors and assigns, and shall enure to the benefit of
Xxxxx and its successors and assigns, until either (a) all the Liabilities
shall have been indefeasibly satisfied by payment in full or the obligations
of Guarantor under this Guaranty shall have been indefeasibly satisfied by
payment in full, or (b) Subsidiary's obligations under the Agreement have
expired or terminated, whichever first occurs.
5. This Guaranty shall continue to be effective, or be reinstated, as
the case may be, if at any time, payment, or any part thereof, of any of the
Liabilities is rescinded or must otherwise be restored or returned by Xxxxx
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of Subsidiary or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, Subsidiary
or any substantial part of its property, or otherwise, all as though such
payments had not been made.
6. No failure to exercise and no delay in exercising, on the part of
Xxxxx, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the exercise of
any other power or right. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
7. No provision of this Guaranty shall be waived, amended or
supplemented except by a written instrument executed by Guarantor and Xxxxx.
This Guaranty shall be governed by and construed and interpreted in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the day and
year first above written.
TOTAL CONTROL PRODUCTS INC.
By: /S/ XXXXXXXX XXXX
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XXXXXXXX XXXX, President
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