EXHIBIT 10.64
GUARANTY AND SURETYSHIP AGREEMENT
FOR VALUE RECEIVED, the undersigned (herein called "Guarantor"),
unconditionally guarantees and becomes surety for the full payment, performance
and observation of (i) all of the covenants, conditions and agreements therein
provided to be performed and observed by PETROCON ENGINEERING, INC. ("Tenant")
pursuant to a Second Amended and Restated Lease Agreement (the "Lease") dated as
of February__, 2002 by and between CORPORATE PROPERTY ASSOCIATES 4 ("Landlord")
and Tenant, Tenant's successors and assigns, and Guarantor hereby makes itself
fully liable for such full payment, performance and observation of all the
covenants, conditions and agreements therein provided to be performed and
observed by Tenant, Tenant's successors and assigns and (ii) all costs,
attorneys' fees and expenses incurred or expended by Landlord in enforcing its
rights against Tenant under the Lease or Guarantor hereunder. Guarantor's
obligations hereunder shall be further subject to the terms and conditions
herein set forth.
l. Guarantor expressly agrees that the validity of this agreement and its
obligations hereunder shall in no wise be terminated, affected or
impaired by reason of the assertion by Landlord against Tenant of any
obligation or obligations of Tenant to Landlord and further covenants
and agrees that this Guaranty shall remain and continue in full force
and effect as to any renewal, modification or extension of the Lease
and any assignment or transfer by Landlord, whether or not it shall
have received any notice of or consented to such renewal, modification,
extension, assignment or transfer.
2. Failure of Landlord to insist upon strict performance or observation of
any of the terms, provisions or covenants of the Lease or to exercise
any right therein contained shall not be construed as a waiver or
relinquishment for the future of any term, provision, covenant or
right, but the same shall continue and remain in full force and effect.
Receipt by Landlord of rent with knowledge of the breach of any
provision of the Lease shall not be deemed a waiver of such breach.
3. Guarantor further agrees that its liability under this Guaranty shall
be primary, and that in any right of action which shall accrue to
Landlord under the Lease, Landlord may, at its option, proceed against
Guarantor and Tenant, jointly and severally, or may proceed against
Guarantor without having commenced any action against or having
obtained any judgment against Tenant.
4. Guarantor absolutely and unconditionally covenants and agrees that (i)
in the event that Tenant does not or is unable to pay or perform its
obligations under the Lease for any reason, including, without
limitation, liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment or other similar proceedings
affecting the status, composition, identity, existence, assets or
obligations of Tenant, or the disaffirmance or termination of any of
said obligations in or as a result of any proceeding, and/or (b) if all
or any part of said obligations (or any instrument or agreement made or
executed in connection therewith) is for any reason found to be
invalid, illegal, unenforceable, uncollectible or legally impossible,
for any reason whatsoever (including, without limiting the generality
of the foregoing, upon the grounds that the payment and/or performance
of said obligations is ultra vires or otherwise without authority, or
is subject to valid defenses, claims or offsets of Tenant; then in any
such case Guarantor shall pay and perform the obligations as herein
provided, and no such occurrence shall in any way diminish or otherwise
affect Guarantor's obligations hereunder.
5. In the event any payment of Tenant to Landlord is held to constitute a
preference under the bankruptcy laws, or if for any other reason
Landlord is required to refund such payment or pay the amount thereof
to any other party, such payment by Tenant to Landlord shall not
constitute a release of Guarantor from any liability hereunder, but
Guarantor agrees to pay such amount to Landlord upon demand, and this
Guaranty shall continue to be effective or shall be reinstated, as the
case may be, to the extent of any such payment or payments.
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6. Guarantor agrees that Landlord may, from time to time, at its
discretion, and with or without valuable consideration, allow
substitution, withdrawal, release, surrender, exchange, subordination,
deterioration, waste, loss or other impairment of all or any part of
any security or collateral securing Tenant's obligations under the
Lease, without notice to or consent by Guarantor, and without in
anywise impairing, diminishing or releasing the liability of Guarantor
hereunder.
7. The rights of Landlord are cumulative and shall not be exhausted by its
exercise of any of its rights hereunder or otherwise against Guarantor
or by any number of successive actions until and unless all rental
under the Lease has been paid, all other obligations of Tenant have
been performed and each of the obligations of Guarantor hereunder has
been performed.
8. This Guaranty shall be deemed to have been made under and shall be
governed by the laws of the State of Texas in all respects and shall
not be waived, altered, modified or amended as to any of its terms or
provisions except in writing duly signed by Landlord and Guarantor.
9. For so long as the financial statements of Tenant are consolidated with
the financial statements of Guarantor, Guarantor shall provide to
Landlord financial statements and information with respect to Guarantor
in the form and at the times required under Paragraph 14.2 of the
Lease, and in, such event the requirements of Paragraph 14.2 with
respect to Tenant shall be deemed met.
10. Guarantor acknowledges and agrees that this Guaranty accurately
represents and contains the entire agreement between Guarantor and
Landlord with respect to the subject matter hereof, that Guarantor is
not relying, in the execution, of this Guaranty, on any representations
(whether written or oral) made by or on behalf of Landlord except as
expressly set forth in this Guaranty, and that any and all prior
statements and/or representations made by or on behalf of Landlord to
Guarantor (whether written or oral) in connection with the subject
matter hereof are merged herein.
11. The use of any gender herein shall include the other gender. A
determination that any provision of this Guaranty is unenforceable or
invalid shall not affect the enforceability or validity of any other
provision.
12. All terms and provisions hereof shall inure to the benefit of the
successors and assigns of Landlord and shall be binding upon the
successors and assigns of Guarantor.
EXECUTED this 26/th/ day of April, 2002.
INDUSTRIAL DATA. SYSTEMS
CORPORAT1ON, a Nevada Corporation
By: /s/ William A. Coskey
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Name: WILLIAM A. COSKEY
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Title: PRESIDENT
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