EXHIBIT 10.30
GUARANTY
THIS GUARANTY
is made this 30
th day of March , 2007 , by
EVANS & SUTHERLAND COMPUTER CORPORATION , a Utah
corporation (hereinafter the “Guarantor”).
W I T N E S S E T
H:
WHEREAS , SPITZ, INC. , a Delaware corporation
(hereinafter the “Borrower”), has executed and
delivered to FIRST KEYSTONE BANK (hereinafter the
“Lender”), a Mortgage Note in the original principal
sum of Three Million Two Hundred Thousand Dollars
($3,200,000.00) (the “Note”) made by Borrower and
Transnational Industries, Inc., a Delaware corporation
(“Transnational”) and delivered to Lender on January
14, 2004, evidencing a loan (the “Loan”) to finance
Borrower’s acquisition of the premises known as Route 1,
Chadds Ford Township, Delaware County, Pennsylvania, being
Folio No. 04-00-00034-02 and operated by Borrower as its
principal business office (the “Real Estate”).
The Loan is further evidenced by that certain Loan Agreement
between Borrower, Transnational and Lender dated January 14, 2004
(the “Loan Agreement”); and
WHEREAS , the Loan is secured by, among other things,
that certain Open-End Mortgage and Security Agreement dated January
14, 2004 (the “Mortgage”) encumbering the Real Estate;
and
WHEREAS, on or about April 28, 2006, Transnational sold
all of Transnational’s one hundred percent (100%) ownership
interest in and to Borrower to Guarantor; and
WHEREAS, in connection with the origination of a line of
credit and the sale by Transnational of all of
Transnational’s interests in and to Borrower, Lender released
Transnational as a co-borrower under the Loan; and
WHEREAS, the Loan Agreement sets forth certain financial
covenants of the Borrower, including without limitation a covenant
to deliver to Lender within ninety (90) days following the end of
Borrower’s fiscal year and each fiscal quarter, respectively,
a copy of the Borrower’s Annual Report on Form 10-KSB and
quarterly report on Form 10-QSB, (the “Financials”),
and a covenant to provide Lender, within thirty (30) days of the
date the same are due for filing, copies
of Borrower’s Federal Income
Tax Returns (the “Tax Returns”); and
WHEREAS, Guarantor is a publicly traded company and,
pursuant to that certain First Modification Agreement dated even
date herewith (the “First Modification Agreement”),
Guarantor has agreed to provide to Lender Bank, within ninety (90)
days following the end of Guarantor’s fiscal year and each
fiscal quarter, respectively, in each year, Guarantor’s
Annual Report on Form 10-K and quarterly report on Form 10-Q;
and
WHEREAS, as a wholly owned subsidiary of Guarantor,
Borrower is no longer required to prepare separate audited
financials or file a separate income tax return and Borrower and
Guarantor have requested that Lender waive the requirement that
Financials and Tax Returns be provided; and
WHEREAS , Lender has agreed to waive the requirement
that Financials and Tax Returns be provided in consideration, among
other things, of the covenants and obligations made and assumed by
Guarantor as herein set forth; and
WHEREAS , the outstanding principal balance of the Note,
together with interest and all other sums due or to become due
thereunder is referred to herein as the “Indebtedness”;
and
WHEREAS , Guarantor has agreed to make this Guaranty in
consideration of the agreement of Lender to modify the Loan as more
fully set forth in the First Modification Agreement; and
WHEREAS , in order to induce Lender to enter into the
First Modification Agreement, the Guarantor herein executes this
Guaranty.
NOW THEREFORE
, for good and valuable
consideration, intending to be legally bound hereby, Guarantor
agrees as follows:
1.
Guaranty of Performance . Guarantor absolutely
and unconditionally, jointly and severally, guarantees to Lender
the payment and performance of the conditions of the Note, pursuant
to the terms and conditions set forth therein, together with all
reasonable legal and other expenses of collection, and hereby
expressly and unconditionally waives demand, notice of presentment
and non-payment, protest and notice of protest, of the Note, and
agrees that the time for payment thereof may be extended by Lender
without notice to or further consent from the Guarantor.
Guarantor further agrees to pay the full unpaid principal, interest
and other charges due under the Note when owing immediately upon
written notice of an Event of Default as to any
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one or more of the terms and
conditions of the Note, First Modification Agreement, Mortgage,
Loan Agreement or any other document executed by Borrower and/or
Guarantor and delivered to Lender in connection with the Loan
(collectively referred to herein as the “Loan
Documents”), it being agreed between the parties hereto that
the full balance when due and owing on the Note shall become due
and payable upon acceleration by the Lender in accordance with the
terms of the Note.
2.
No Waiver . Any waiver by Lender of an Event of
Default under the Loan Documents, and any failure on the part of
Lender to enforce its rights against Borrower, or its successors or
assigns, shall not affect the absolute and unconditional liability
of the Guarantor. Any extensions of time granted by Lender to
Borrower, or its successors or assigns, shall not release the
Guarantor from its obligations hereunder.
3.
Actions Not Affecting Guarantor ’ s
Liability . In addition to (but not in limitation of)
all of the foregoing provisions, Lender may take any of the
following actions (with or without notice to the Guarantor) without
affecting the liability of the Guarantor in any way:
a.
release, exchange, increase or decrease, or surrender all or any
part of the security held by it for the Indebtedness, or substitute
new security for all or any portion thereof, whether or not the new
security shall be equal in value with the security
substituted;
b.
recast, extend or modify all or any portion of the
Indebtedness;
c.
grant waivers, extensions, renewals or other indulgences under the
Note;
d.
modify or amend any of the terms, provisions or agreements
contained in the Note
e.
vary, exchange, release or discharge, wholly or partially, or delay
in or abstain from perfecting or enforcing any security or guaranty
of the Note;
f.
accept partial payment or performance of the Note from the
Borrower; or
g.
compromise or make any settlement or other arrangement with the
Borrower.
4.
Direct Proceedings Against Guarantor . This
shall be an agreement of suretyship as well as of guaranty.
Liability on this Guaranty shall not be conditional or contingent
upon the pursuance by Lender or anyone else of whatever remedies it
may have against Borrower, or its successors or assigns, nor shall
Lender be required to foreclose, exhaust,
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or in any other way look for the
security which it now has or which it may obtain or in the future
may acquire. Not in limitation of the generality of the foregoing,
the liability of Guarantor hereunder shall remain effective and
enforceable even though Borrower’s liability under the Note
may be unenforceable, or recovery against the Borrower may be
barred by the statute of limitations or otherwise, it being further
understood and agreed that Guarantor waives any defense arising by
reason of any disability or other defense of Borrower or by reason
of the cessation from any cause whatsoever of the liability of
Borrower. The obligations and liabilities of Guarantor
hereunder and any other guarantor/surety of the Borrower’s
liabilities and obligations under the Note, the First Modification
Agreement, the Mortgage and other Loan Documents, and all
extensions, modifications and/or renewals thereof, shall be joint
and several.
5.
Extensions or Renewals . Liability of the
Guarantor hereunder shall be a continuing one and shall extend to
any and all notes or other evidences of indebtedness which may be
given in extension, modification, increase or renewal of the
present indebtedness of the Borrower evidenced by the
Note.
6.
Representations and Warranties The Guarantor
hereby represents and warrants that:
a.
The Guarantor has no offsets, counterclaims or defenses against the
Indebtedness or this Guaranty, and has the legal capacity to enter
into this Guaranty and to perform Guarantor’s obligations
hereunder.
b.
This Guaranty constitutes the legal, valid and binding obligation
of the Guarantor enforceable against Guarantor in accordance with
its terms.
c.
There is no action, suit, proceeding, inquiry or investigation, at
law or in equity, or before or by any court, public board or body,
pending, or within the knowledge of the Guarantor threatened,
wherein an unfavorable decision, ruling or finding would adversely
affect the validity or enforceability of this Guaranty or any of
the Loan Documents.
d.
Neither the execution and delivery of this Guaranty, the
consummation of the transactions contemplated hereunder nor the
fulfillment of or compliance with the terms and conditions obtained
herein is prevented or limited by, or would be prevented or limited
by, or conflict with, or breach, the terms, conditions or
provisions of any law, rule, regulations, order of any court or
governmental agency, or any evidence of indebtedness, agreement or
instrument of
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whatever nature to which the
Guarantor (or any company, corporation or other business entity
controlled by the Guarantor or affiliated with any one of them) is
now a p