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Exhibit 10.3
GUARANTEE
THIS
GUARANTEE made as
of May 1, 2008 , by
CHDT
CORPORATION, a Florida
corporation, with offices located at 350 Jim Moran Blvd.,
Deerfield Beach, Florida 33442 (the "Guarantor" or the
"Undersigned"), in favor of
STERLING
NATIONAL BANK , a national banking association, having
an office located at 500 Seventh Avenue, New York, New York
10018 (hereinafter referred to as the "Bank");
W I T N E
S S E T H :
WHEREAS,
CAPSTONE
INDUSTRIES, INC. (the "Borrower" or "Debtor") is or
will be obligated to the Bank under any number of documents,
agreements and instruments (hereinafter referred to as the
"Obligation Documents" or "Loan Documents") requiring the
payment of principal, interest and other sums as well as the
performance of obligations as more specifically set forth
therein (hereinafter referred to as the "Obligations");
and
WHEREAS,
the Undersigned acknowledges that the Bank would not make
extensions of credit to the Borrower without the Undersigned
guaranteeing, absolutely and unconditionally, the payment and
performance of all Obligations of the Borrower owed or due to
the Bank, and that this guarantee is a material inducement for
the Bank to make extensions of credit to the Borrower;
and
WHEREAS,
the Undersigned acknowledges that it will derive direct and
indirect benefits from extensions of credit by the Bank to the
Borrower pursuant to the Loan Documents;
NOW,
THEREFORE, in consideration of the premises, and other good
and valuable consideration, the Undersigned hereby agrees as
follows:
1. Each
Guarantor hereby absolutely, unconditionally, irrevocably, and
without limitation guarantees to the Bank the prompt and full
payment and other performance of all of the Obligations when
each of such Obligations is due, whether at a specific due
date, at the stated maturity, by acceleration or otherwise.
The agreements and obligations of each Guarantor under this
Guarantee shall be continuing and shall remain in full force
and effect until all of the Borrower's Obligations to the Bank
have been satisfied in full. The term "Obligations" shall
mean, in addition to the definition of Obligations in any of
the Loan Documents, all indebtedness, obligations and
liabilities of Borrower to Bank or any of its affiliates of
every kind and description, direct or indirect, secured or
unsecured, joint or several, absolute or contingent, due or to
become due, including any overdraft, whether for payment or
performance, now existing or hereafter arising, whether
presently contemplated or not, regardless of how the same
arise, or by what instrument, agreement or book account,
including, but not limited to, all loans (including any loan
modification, renewal or extension), all indebtedness
including any arising from any derivative transactions,
all
undertakings
to take or refrain from taking any action, all indebtedness,
liabilities or obligations owing from Borrower to others which
Bank may have obtained by purchase, negotiation, discount,
assignment or otherwise; and all interest, taxes, fees,
charges, expenses and reasonable attorney's fees (whether or
not such attorney is a regularly salaried employee of Bank,
any parent corporation or any subsidiary or affiliate thereof,
whether now existing or hereafter created) chargeable to
Borrower or incurred by Bank under this Agreement, any of the
other Loan Documents, or any other document or instrument
delivered in connection herewith or otherwise, whether or not
arising out of or related to extensions of credit made
pursuant to the Loan Documents.
2. The
agreements and obligations of each Guarantor under this
Guarantee shall be absolute, unconditional and irrevocable,
irrespective, by way of example only, of the validity,
legality or enforceability of the Obligation Documents or any
other document, in whole or in part, or of the existence,
value or condition of any collateral or other security for any
or all of the Obligations, or any other circumstance which
might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
3.
This guarantee is a primary obligation of the Guarantor. The
Bank shall be under no obligation to proceed against the
Borrower before proceeding directly against any Guarantor. The
Bank shall be under no obligation to proceed against any or
all collateral heretofore or hereafter given or granted to the
Bank to secure payment or performance of the Obligations
before proceeding directly against any Guarantor.
4. The
Bank may have received or may hereafter receive an interest or
lien in collateral as security for the Obligations of the
Borrower. However, the Bank shall not be required to proceed
against the collateral before enforcing this Guarantee. The
Guarantor grants to the Bank full power, in its absolute and
uncontrolled discretion and without notice to the Guarantor,
to deal in any manner with the Obligations and the collateral,
including, but without limiting the generality of the
foregoing, the following powers: (a) to consent to the
substitution, exchange, or release of all or any part of the
collateral, whether or not other collateral, other property or
payment, if any, received by the Bank upon such substitution,
exchange, or release shall be of the same or different
character or value than the collateral so substituted,
exchanged or released; (b) in the event of the nonpayment when
due, whether by acceleration or otherwise, of any of the
Obligations, or in the event of default in the performance of
any Obligation, to realize on the collateral or any part
thereof, as a whole or in such parcels or sub-divided
interests or parts as the Bank may elect, at any public or
private sale or sales, without demand, advertisement or notice
of the time or place of sale or any adjournment thereof,
each Guarantor hereby waiving any such demand,
advertisement and notice to the fullest extent permitted by
law, or by foreclosure or otherwise, all as the Bank in its
absolute and uncontrolled discretion may deem proper, and to
purchase all or any part of the collateral for its own account
at any such sale or foreclosure. The Undersigned shall have no
right of subrogation whatsoever with respect to the
Obligations or the collateral unless and until the Bank shall
have received full payment and performance of all the
Obligations. The
obligations
of the Guarantor hereunder, and the rights of the Bank in the
collateral, shall not be released, discharged or in any way
affected, nor shall the Guarantor have any rights or defenses
against the Bank, by reason of the fact that any of the
collateral may be subject to equities or defenses or claims in
favor of others or may be invalid or defective in any way, nor
by reason of the fact of the value or change therein of any of
the collateral at any time, nor by reason of the Bank taking
or failing to take any action with respect to the collateral
including, but not limited to, preserving or protecting same,
or perfecting or maintaining perfection of any security
interest or lien therein, nor by reason of
the financial condition of the Borrower or any
other party.
5. Except
as otherwise expressly set forth in this section, each
Guarantor hereby waives any and all notice of any kind or
nature including, but not limited to, the creation, renewal,
extension or accrual of any of the Obligations; notice of or
proof of reliance by the Bank upon this Guarantee or
acceptance of this Guarantee; presentment for payment, demand,
notice of non-payment, notice of protest, protest, default by
the Borrower of its Obligations to the Bank or of the
Obligation Documents, and all other notices to which
guarantors might otherwise be entitled, or which might be
required by law and required to be given by the Bank. Each
Guarantor hereby waives any right to seek from any court or
authority the posting of a bond or security prior to the
exercise by the Bank of any remedy described herein or in the
Obligation Documents, the benefit of all valuation,
appraisement and exemption laws, and any right to demand or to
have any marshaling of assets upon any power of sale granted
herein or by the Obligation Documents or pursuant to judicial
proceedings or upon any foreclosure or any enforcement of this
Guarantee.
6. The
Bank may, without notice to or consent from any Guarantor (a)
extend the time for payment or otherwise modify the terms of
payment or performance of any Obligation guaranteed hereby;
(b) release, settle or compromise with any other Guarantor;
(c) exercise or refrain from exercising any rights with
respect to the Borrower, any Guarantor or any collateral; (d)
apply any sums received by the Bank in connection with the
Obligations in such manner as shall be determined by the Bank;
and (e) take or refrain from taking any action authorized by
the Obligation Documents or by law.
7. Any
one or more of the following acts or occurrences shall
constitute a Default under this Guarantee: (a) any
representation or warranty made by or on behalf of any
Guarantor, or in any report, certificate, financial statement
or other instrument furnished to the Bank in connection with
this Guarantee or the Obligation Documents shall prove to be
inaccurate, false or misleading in any material respect as of
the date with respect to which it was made or deemed to be
made; (b) if any Guarantor shall have failed to pay or
discharge the Obligations guaranteed hereby after the Borrower
shall have defaulted under the terms of the Obligation
Documents and such default shall continue beyond any cure
period prescribed therein; (c) the Borrower or any Guarantor
shall have failed to duly observe or perform any covenant,
condition or agreement on the part of the Borrower or such
Guarantor to be observed or performed pursuant to the terms of
the Obligation Documents beyond any applicable cure period;
(d) if an Event of Default as defined in the Obligation
Documents shall occur and continue beyond any
applicable
cure period prescribed therein; (e) if any Guarantor shall
fail to comply with any agreement or covenant of such
Guarantor under the provisions of this Guarantee; or (f) if
the Bank shall not b
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