EXHIBIT 10.26
GUARANTY OF PAYMENT
GUARANTY dated as of September 30, 2002, made by XXXXXXXXXXX X. XXXXX (the
"Guarantor"), in favor of UNITEDTRUST BANK, having an office at 0000 Xxxxx 00
Xxxx, X.X. Xxx 0000, Xxxxxxxxxxx, Xxx Xxxxxx 00000 (the "Bank").
Stronghold Technologies, Inc., a New Jersey Corporation, and Stronghold
Technologies, Inc., a Nevada Corporation (together the "Borrower"), desires to
obtain loans or other financial accommodations from the Bank. The Bank is
unwilling to extend the accommodations unless it receives this Guaranty. The
Guarantor wishes the accommodations to be made and will derive advantage from
such accommodations.
Accordingly, to induce the Bank, in its discretion, to make such loans or
accommodations:
Section 1. Guaranty. The Guarantor hereby unconditionally guarantees to the Bank
the prompt payment, when due, whether by acceleration or otherwise, of all
present or future obligations or liabilities of the Borrower to the Bank,
whether now existing or arising after the date of this Guaranty, secured or
unsecured, absolute or contingent, together with all modifications, extensions
or renewals of the obligations or liabilities. This Guaranty covers obligations
and liabilities incurred by the Borrower in any capacity (including as maker,
endorser, guarantor, accommodation party or otherwise) and also includes the
amount of any payment made by the Borrower to the Bank which payment is
rescinded or must otherwise be returned by the Bank upon the insolvency or
bankruptcy of the Borrower. This Guaranty covers obligations and liabilities
incurred by the Borrower under any indemnification provisions set forth in the
documents evidencing and securing such obligations and liabilities. Such
obligations and liabilities, together with interest and all fees, costs,
expenses, attorneys' fees and other costs of collection incurred or paid by the
Bank, are together referred to as the "Indebtedness". This Guaranty replaces and
supercedes the Commercial Guaranty dated November 1, 2001 from the Guarantor in
favor of the Bank.
Section 2. Guaranty Absolute. The Guarantor will pay all Indebtedness in
accordance with its terms. The liability of the Guarantor under this Guaranty is
absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any documents evidencing (or
relating) to the Indebtedness;
(ii) any change in the time, manner, place or amount of payment or in any other
term of all or any of the Indebtedness, or any other amendment or waiver of or
any consent to departure from the terms of the Indebtedness;
(iii) any exchange, release or non-perfection of any collateral or lien securing
all or any part of the Indebtedness, which exchange, release or non-perfection
the Guarantor expressly agrees will not be deemed an unjustifiable impairment of
the collateral;
(iv) any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any part of the Indebtedness;
(v) any settlement or compromise with any Borrower or any other person relating
to the Indebtedness; or
(vi) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any Borrower in respect of the Indebtedness or
the Guarantor in respect of this Guaranty.
This Guaranty will continue to be effective, or be reinstated, as the case may
be, if at any time any of the Indebtedness is rescinded or must otherwise be
returned by the Bank upon the insolvency or bankruptcy of any Borrower or
otherwise, all as though such payment had not been made.
Section 3. Waiver. The Guarantor waives presentment, demand, diligence, notice
of acceptance and any other notice with respect to any of the Indebtedness
and/or this Guaranty and any requirement that the Bank exhaust any right or take
any action against the Borrower or any other person or entity or any collateral.
Section 4. Subrogation, Reimbursement and Indemnity. The Guarantor waives (a)
ail right to seek reimbursement or indemnity from the Borrower, and (b) any
right to subrogation it may have or acquire as result of performance under this
Guaranty.
Section 5. Representation and Warranties. The Guarantor represents and warrants:
(a) The execution and delivery of this Guaranty and the performance of its
obligations under this Guaranty have been authorized by all necessary action.
(b) No authorization, or registration with, any court or governmental
department, commission, agency or instrumentality, is or will be necessary to
the valid execution, delivery or performance of the Guaranty.
(c) This Guaranty constitutes the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms.
(d) The Guarantor has made whatever inquiry into the financial or other affairs
of the Borrower, and the terms of any Indebtedness, as it deems necessary or
desirable prior to executing this Guaranty and has not relied on the Bank for
any such information.
(e) The Guarantor shall provide the Bank with any and all financial information
and/or financial statements as requested by the Bank, including annual financial
statements and manually signed copies of federal and state tax returns, which
shall be satisfactory to the Bank.
(f) The Guarantor has not and will not, without the Bank's prior written
consent, sell, lease, assign, encumber, hypothecate, transfer or otherwise
dispose of all or substantially all of the Guarantor's assets, or any interest
therein.
Section 6. Acceleration. The Guarantor agrees that, if the maturity of any of
the Indebtedness i3 accelerated, by bankruptcy or otherwise, as against the
Borrower, the maturity shall also be deemed accelerated for the purposes of this
Guaranty, and without demand on or notice to the Guarantor.
Section 7. Amendments, etc. This Guaranty represents the entire agreement of the
parties. No amendment or waiver of any provision nor consent to departure by the
Guarantor from any provision is effective unless in writing and signed by the
Bank,
and then the waiver or consent will be effective only in the special instance
and for the specific purpose given.
Section 8. Notices. All notices required or permitted under this Guaranty shall
be given to the parties at the address stated in this Guaranty (or at any other
address a party may designate) in writing, sent by first class mail, postage
prepaid, and is deemed complete upon mailing.
Section 9. No Waiver; Remedies. No failure on the part of the Bank to exercise,
and no delay in exercising, any right under this Guaranty shall operate as a
waiver of such right, nor shall any single or partial exercise of any right
preclude any further exercise of such right or of any other right. All remedies
provided in this Guaranty and in any document evidencing or relating to any
Indebtedness are cumulative.
Section 10. Right of Set-off; Security Interest. On the occurrence and during
the continuance of any default under the Indebtedness, the Bank is authorized at
any time, without notice to the Guarantor to set off and apply to any unpaid
Indebtedness: (a) any amounts which the Bank from time to time may owe the
Guarantor, including any balance or share of any general or special deposit,
certificate of deposit, savings certificates or other account (regardless of the
source or intended use of any funds in such account) , and (b) any other
property, tangible or intangible, owned by or in which the Guarantor has an
interest which may be in the possession or control of the Bank, in which
accounts and other property the Guarantor grants the Bank a security interest.
This right is in addition to and not in limitation of any other rights,
including of set-off, which the Bank may have by law.
Section 11. Continuing Guaranty; Assignment. This Guaranty is a continuing
guaranty and will: (a) remain in full force and effect until payment in full of
the Indebtedness and all other amounts payable under this Guaranty, (b) extend
to and cover every modification, waiver, extension or renewal of and every
obligation accepted in substitution for, the Indebtedness, (c) be binding upon
the Guarantor, its successors and assigns and; (d) inure to the benefit of and
be enforceable by the Bank and its successors, transferees and assigns.
Section 12. Other Guarantors. The obligations of each Guarantor under this
Guaranty shall be joint and several as to each other and all other guarantors of
the Indebtedness. This Guaranty shall not be impaired or affected in anyway as
to the Guarantor by any termination, revocation, release, modification,
discharge or substitution of collateral or changes as to any or all of the
liabilities or undertakings of any other guarantor.
Section 13. Guaranty Not Modified By Bankruptcy. Neither the Guarantor's
obligation in accordance with the terms of this Guaranty, nor any remedy for the
enforcement, nor the amount of the Indebtedness of the Borrower will be
impaired, modified, or limited in any manner whatsoever by any impairment,
modification, discharge, limitation of the Indebtedness of the Borrower or its
estate in bankruptcy or any remedy for the enforcement, resulting from the
operation of any present or future provision of the Bankruptcy Code of the
United States or other statute, or from the decision of any court interpreting
any of the same, and each Guarantor is obligated under this Guaranty. The amount
of the Indebtedness will, for the purposes of this Guaranty, be determined
As if no such impairment, stay, modification, discharge, or limitation had
occurred.
Section 14. Governing Law. This Guaranty will be governed by, and construed in
accordance with, the laws of the State of New Jersey. In the event the Bank
brings any action hereunder in any court of record of New Jersey or the Federal
Government, the Guarantor consents to and confers personal jurisdiction over the
Guarantor by such court or courts and agrees that service of process may be made
upon the Guarantor by mailing a copy of such process to the Guarantor.
Section 15. Waiver of Jury Trial. THE GUARANTOR WAIVES TRIAL BY JURY IN ANY
ACTION UNDER OR RELATING TO THIS GUARANTY AND TO THE INDEBTEDNESS OF THE
BORROWER TO THE BANK.
Witness:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxxxxxx X. Xxxxx
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Xxxxxx X. Xxxxxxxx Xxxxxxxxxxx X. Xxxxx
Address:
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
