Exhibit 10.7
GUARANTY
THIS GUARANTY (this
“Guaranty”), dated as of February 5, 2007, is made by
Emtec, Inc., a Delaware corporation (the “Guarantor”)
in favor of________________________. (the
“Holder”).
Background
WHEREAS, the Guarantor is a
Delaware corporation and indirect holder of all outstanding capital
stock of Westwood Computer Corporation (the
“Company”).
WHEREAS, the Company and the Holder
have entered into the Termination Agreement dated as of the date
hereof and, in connection with such Termination Agreement, the
Company and the Holder have agreed to enter into that certain
Subordinated Promissory Note, dated as of February 5, 2007 (the
“Promissory Note”); and
WHEREAS, pursuant to the Promissory
Note, the Company agrees to pay to the Holder the principal amount
of $1,002,900; and
WHEREAS, in connection with the
delivery of the Promissory Note, the Guarantor has agreed to
execute and deliver to the Holder a guaranty guaranteeing the
obligations of the Holder under the Promissory Note.
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter contained and intending to be
legally bound, the Guarantor hereby agrees with the Holder as
follows:
1.
Definitions . All terms used in this Guaranty which are not
otherwise defined herein shall have the meanings set forth in the
Promissory Note.
2.
Guaranty .
a.
The Guarantor hereby irrevocably, absolutely and unconditionally,
becomes surety for and guarantees the prompt payment, as and when
due and payable, of all amounts now or hereafter owing in respect
of the Promissory Note, whether for principal, interest, fees or
otherwise, and the due performance and observance by the Company of
its obligations now or hereafter existing in respect of the
Promissory Note (the “Indebtedness”).
b.
Payment by the Guarantor is due upon demand by the Holder and is
payable in immediately available funds in lawful money of the
United States of America after the expiration of any available
grace period provided herein or in the Promissory Note.
3.
Guarantor’s Indebtedness Unconditional .
a.
Subject to the terms hereof, the Guarantor hereby guarantees that
the Indebtedness will be paid strictly in accordance with the terms
of the Promissory Note, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the Holder with respect thereto. The
liability of the Guarantor to the extent herein set forth shall be
absolute and unconditional, irrespective of: (i) any lack of
validity or enforceability of the Promissory Note; (ii) any change
in the time, manner or place of payment of, or in any other term in
respect of, all or any of the Indebtedness, or any other amendment
or waiver of or consent to any departure from the Promissory Note;
(iii) the absence of any action on the part of the Holder to obtain
payment of the Indebtedness from the Company; (iv) any insolvency,
bankruptcy, reorganization or dissolution, or any proceeding in
respect thereof of the Company or the Guarantor; or (v) the absence
of notice or the absence of or any delay in any action to enforce
any Indebtedness.
b.
This Guaranty (i) is a continuing limited guarantee and shall
remain in full force and effect until the satisfaction in full of
the Indebtedness; and (ii) shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment of
any of the Indebtedness is rescinded or must otherwise be returned
by the Holder upon the insolvency, bankruptcy or reorganization of
the Company, or otherwise, all as though such payment had not been
made.
4.
Waivers . The Guarantor hereby waives (a) promptness and
diligence; (b) notice of any actions taken by the Holder or the
Company under the Promissory Note; and (c) all other notices,
demands and protests, and all other formalities of every kind in
connection with the enforcement of the Indebtedness or of the
obligations of the Guarantor to the extent herein set forth, the
omissions of or delay in which, but for the provisions of this
Section 4, might constitute grounds for relieving the Guarantor of
its obligations to the extent herein set forth.
5.
Subrogation . The Guarantor will not exercise any rights
which it may acquire by way of subrogation hereunder, by any
payment made by it hereunder or otherwise, until such date on which
all of the Indebtedness shall have been satisfied in full. If any
amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Indebtedness and all
other expenses guaranteed pursuant hereto shall not have been paid
in full, such amount shall be held in trust for the benefit of the
Holder, shall be segregated from the other funds of the Guarantor
and shall forthwith be paid over to the Holder to be applied in
whole of in part by the Holder against the Indebtedness, whether
matured or unmatured, in accordance with the terms of the
Promissory Note or any other agreement relating thereto. If the
Guarantor shall make payment to the Holder of all or any portion of
the Indebtedness and all of the Indebtedness shall be paid in full,
the Holder will, at the Guarantor’s request, execute and
deliver to the Guarantor (without recourse, representation or
warranty) appropriate documents necessary to evidence the transfer
by subrogation to the Guarantor of an interest in the Indebtedness
resulting from such payment by the Guarantor, such subrogation to
be fully subject
2
and subordinate, however, to the
collection by the Holder of all other amounts due to the Holder by
the Company under the Promissory Note.
6.
Notices, Etc. Except as may be otherwise provided herein,
any deman
