EXHIBIT 10.4.7
UNCONDITIONAL GUARANTY AGREEMENT
This UNCONDITIONAL GUARANTY AGREEMENT ("Guaranty") is entered into as of
this 1st day of February, 2001, between E-COMMERCE SUPPORT CENTERS, INC., a
North Carolina corporation (the "Primary Obligor"), PALADYNE CORP., a Delaware
corporation ("Guarantor"), and GIBRALTER PUBLISHING, INC., a North Carolina
corporation ("Gibralter").
WITNESSETH:
WHEREAS, the above Primary Obligor (hereinafter termed "Debtor") desire(s)
to obtain extensions of credit from Gibralter pursuant to the following two
promissory notes: (i) that certain promissory note dated as of the 1st day of
February, 2001 in the face amount of One Million Five Hundred Thousand and
N0/100 Dollars ($1,500,000) ("Promissory Note A"); and (ii) that certain
promissory note dated as of the 1st day of February, 2001 in the face amount of
Three Million Five Hundred Thousand and N0/100 Dollars ($3,500,000) ("Promissory
Note B") (Promissory Note A and Promissory Note B are hereinafter collectively
referred to as the "Notes"); and
WHEREAS, Gibralter is unwilling to extend credit to Debtor under the Notes
unless it receives an unconditional and continuing guaranty from the above
identified, undersigned Guarantor covering all Secured Obligations (as
hereinafter defined);
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, and in order to induce Gibralter to extend credit (with
or without security) to Debtor (without limiting the generality of the
foregoing, this Guaranty is being given in order to induce Gibralter to extend
credit to Debtor or otherwise to deal with Debtor) the parties hereto agree as
follows:
1. Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Gibralter and its successors, endorsees or assigns, the due and
punctual payment of all liabilities and obligations of Debtor to Gibralter
arising under the terms and conditions of the Notes, including all renewals,
extensions and/or modifications thereof (all such liabilities and obligations of
the Debtor to Gibralter, including all of the foregoing, being hereinafter
collectively termed the "Secured Obligations"). The maximum liability of the
undersigned Guarantor hereunder, at any one time outstanding, with respect to
the aggregate principal amount of the "Secured Obligations", shall not exceed
the combined sum(s) of money specified in the Notes, plus all interest, court
costs and the reasonable attorneys' fees of Gibralter in collecting such
amounts.
In order to implement the foregoing and as additional inducement to
Gibralter, Guarantor further covenants and agrees:
This guaranty is and shall remain an unconditional and continuing guaranty
of payment and not of collection, shall remain in full force and effect
irrespective of any interruption(s) in the business or other dealings and
relations of Debtor with Gibralter and shall apply to and guarantee the due and
punctual payment of all "Secured Obligations" owed by Debtor to Gibralter. To
that end, Guarantor hereby expressly waives any right to require Gibralter to
bring any action against any Debtor or any other person(s) or to require that
resort be had to any security or to any balance(s) of any deposit or other
account(s) or debt(s) or credit(s) on the books of Gibralter in favor of Debtor
or any other person(s). Guarantor acknowledges that its liabilities and
obligations hereunder are primary rather than secondary, recognizing that Debtor
is first above identified as "PRIMARY OBLIGOR" and undersigned is identified
first above as "GUARANTOR" solely for convenience in identification of the
parties involved in this Guaranty and in the obligation being secured hereby. To
that end and without limiting the generality of the foregoing, undersigned
Guarantor herewith expressly waives any rights it otherwise might have had under
provisions of the laws of the state of North Carolina to require Gibralter to
attempt to recover against Debtor and/or to realize upon any securities or
collateral security which Gibralter holds for the obligation evidenced or
secured hereby.
2. Time is of the essence hereof. Any notice(s) to Guarantor shall be
sufficiently given, if mailed to the business address(es) of Guarantor as set
forth below.
(a) If to Gibralter: 1650A Gum Branch Road
Jacksonville, North Carolina 28540
(b) If to the Debtor: e-commerce support centers, inc.
1650A Gum Branch Road
Jacksonville, North Carolina 28540
with a copy to: Kilpatrick Stockton LLP
3737 Glenwood Avenue, Suite 400
Raleigh, North Carolina 27612
(c) If to Guarantor: Paladyne Corp.
610 Crescent Executive Court, Suite 124
Lake Mary, Florida 32746
Attention: John D. Foster, Chairman
3. This Guaranty constitutes the entire agreement between the parties
as to Guarantor's unconditional guaranty of the Secured Obligations, and no
waivers or modifications shall be valid unless they are reduced to writing, duly
executed by the party to be charged thereby, and expressly approved in writing
by an officer of Gibralter.
4. All moneys available to and/or received by Gibralter for
application toward payment of (or reduction of) the Secured Obligations may be
applied by Gibralter to such individual debt(s) in such manner, and apportioned
in such amount(s) and at such time(s), as Gibralter, in its sole discretion, may
deem suitable or desirable.
5. Guarantor agrees that its liability hereunder shall not be
diminished by any failure on the part of Gibralter to perfect (by filing,
recording or otherwise) any security interest(s) it may have in any property
securing the Secured Obligations secured hereby and hereunder.
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6. Guarantor further hereby consents and agrees that Gibralter may at
any time, or from time to time, in its sole discretion: (i) extend or change the
time of payment, and/or the manner, place or terms of payment of any or all of
the Secured Obligations in accordance with the terms of the Notes; (ii)
exchange, release and/or surrender all or any of the collateral security, or any
part(s) thereof, by whomsoever deposited, which is or may hereafter be held by
it in connection with all or any of the Secured Obligations, (iii) sell or
otherwise dispose of and/or purchase all or any of any such collateral at public
or private sale, or to or through any securities broker, and after deducting all
costs and expenses of every kind for collection, preparation for sale, sale or
delivery, the net proceeds of any such sale(s) or other disposition may be
applied by Gibralter upon all or any of the Secured Obligations; and (iv) settle
or compromise with the Debtor, any insurance carrier and/or any other person(s)
liable thereon, any and all of the Secured Obligations and/or subordinate the
payment of all or any part of same to the payment of any other debts or claims,
which may at any time(s) be due or owing to Gibralter and/or any other
person(s), all in such manner and upon such terms as Gibralter may deem proper
and/or desirable, and without notice to or further assent from Guarantor, it
being agreed that Guarantor shall be and remain bound upon this Guaranty,
irrespective of the existence, value or condition of any collateral, and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, sale or other disposition, application, renewal or extension and
notwithstanding also that the Secured Obligations may at any time(s) exceed the
aggregate principal sum hereinabove prescribed (if any such limiting sum
appears). Further, this Guaranty shall not be construed to impose any obligation
on Gibralter to extend or continue to extend credit or otherwise to deal with
Debtor at any time.
7. In consideration of Gibralter's extension of credit to Debtor, in
Gibralter's sole discretion, Guarantor hereby agrees:
a. To subordinate, and by this Guaranty does subordinate, debts now
or hereafter owed by Debtor to Guarantor, to any and all debts of Debtor to
Gibralter now or hereafter existing while this Guaranty is in effect.
b. Every promissory note or note evidencing any part of the
subordinated debt and every ledger page relating thereto will bear a legend
which will indicate this subordination.
c. Guarantor will not request or accept payment of or any security
for any part of the subordinated debt, and if all or any part of it should
be paid to Guarantor, through error or otherwise, Guarantor will
immediately forward every such payment to Gibralter in the form received,
properly endorsed to the order of Gibralter, to apply on any debt then
owing to Gibralter by the Debtor. This subordination shall continue in full
force and effect as long as this Guaranty is in effect.
8. This Guaranty shall be binding upon Guarantor, and the successors
and assigns of Guarantor and it shall inure to the benefit of, and be
enforceable by, Gibralter and its successors, transferees and assigns. It
further shall be deemed to have been made under and shall be governed by the
laws of the state of North Carolina in all respects, including matters of
construction, validity and performance.
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9. Further, all terms or expressions contained herein which are
defined in the North Carolina Uniform Commercial Code (the "Code") shall have
the same meaning herein as in said Code.
10. No waiver by Gibralter of any default(s) by Guarantor or Debtor
shall operate as a waiver of any other default or of the same default on a
future occasion.
11. Guarantor hereby waives: (i) notice of acceptance of this
Guaranty; (ii) notice(s) of extensions of credit and/or continuations of credit
extensions to Debtor by Gibralter; (iii) notice(s) of entering into and engaging
in business transactions and/or contractual relationships and any other dealings
between Debtor and Gibralter; (iv) presentment and/or demand for payment of any
of the Secured Obligations; (v) protest or notice of dishonor or default to
Guarantor or to any other person with respect to any of the Secured Obligations;
(vi) any demand for payment under this Guaranty.
12. Anything contained herein to the contrary notwithstanding, if for
any reason the effective rate of interest on any of the Secured Obligations
should exceed the maximum lawful rate, the effective rate of such obligation(s)
shall be deemed reduced to and shall be such maximum lawful rate, and any sums
of interest which have been collected in excess of such maximum lawful rate
shall be applied as a credit against the unpaid principal balance due hereunder.
13. Guarantor shall be in default under this Guaranty upon the
happening of any of the following events, circumstances or conditions, namely:
(a) Default in the payment or performance of any of the obligations
or of any covenant, warranty or liability contained or referred to herein;
or
(b) Any warranty, representation or statement made or furnished to
Gibralter by or on behalf of Guarantor shall be proven to have been false
in any material respect when made or furnished; or
(c) Dissolution, termination of existence, insolvency, business
failure, appointment of a Receiver of all or substantially all of the
property of, or as assignment for benefit of creditors by, or the
commencement of any proceeding under any state or Federal bankruptcy or
insolvency laws by or against Guarantor or Debtor.
14. Upon the occurrence of any of the foregoing events, circumstances,
or conditions of default, all of the obligations evidenced herein and secured or
guaranteed hereby shall immediately be due and payable without notice.
15. The invalidity or unenforceability of any one or more phrases,
sentences, clauses or sections contained in this Guaranty shall not affect the
validity or enforceability of the remaining portions of this Guaranty, or any
part thereof.
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WITNESS the hand(s) and seal(s) of the undersigned, this Guaranty being
executed and delivered under seal on the date first above written.
GUARANTOR:
PALADYNE CORP., a Delaware corporation
ATTEST: By: /s/ John D. Foster
------------------------------------
/s/ Joseph Landis John D. Foster, Chairman
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Joseph Landis, Secretary
[CORPORATE SEAL]
DEBTOR:
E-COMMERCE SUPPORT CENTERS, INC., a
North Carolina corporation
ATTEST: By: /s/ Terrence J. Leifheit
------------------------------------
/s/ Clifford A. Clark Terrence J. Leifheit, President
- -----------------------------
Clifford A. Clark, Secretary
[CORPORATE SEAL]
GIBRALTER:
GIBRALTER PUBLISHING, INC., a
North Carolina corporation
ATTEST: By: /s/ Terrence J. Leifheit
------------------------------------
/s/ Edward A. Bohn Terrence J. Leifheit, President
- -----------------------------
Edward A. Bohn, Secretary
[CORPORATE SEAL]
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