For and in
consideration of the loan by COMMERCE BANK, N.A. (
“Bank” ) to SAFEGUARD DELAWARE, INC. and
SAFEGUARD SCIENTIFICS (DELAWARE), INC. (jointly, severally
and collectively, “Borrower” ), which loan is
made pursuant to a Loan Agreement dated as of the date hereof
(collectively, the “Agreement” ), and
acknowledging that Bank would not enter into the Agreement without
the benefit of this Guaranty, the undersigned SAFEGUARD
SCIENTIFICS, INC. ( “Guarantor” ) hereby
unconditionally and irrevocably guarantees to Bank and becomes a
surety to Bank for the prompt and complete payment of all
Obligations (as defined in the Agreement) and performance by
Borrower of the Agreement, in strict accordance with its terms.
This Unconditional Guaranty is referred to herein as this
“Guaranty” . All terms used without definition
in this Guaranty shall have the meaning assigned to them in the
Agreement.
1. If
Borrower does not pay any Obligations when due or perform its
obligations in strict accordance with the Agreement, Guarantor
shall immediately pay all amounts due thereunder (including,
without limitation, all principal, interest, and fees) and
otherwise proceed to complete the same and satisfy all of
Borrower’s obligations under the Agreement. The liability of
Guarantor hereunder is unlimited. THIS GUARANTY IS A CONTINUING
GUARANTY AND SURETYSHIP AGREEMENT AND SHALL CONTINUE IN FORCE,
UNTIL ALL OBLIGATIONS HAVE BEEN PAID OR SATISFIED IN FULL AS
DETERMINED BY BANK AND BANK HAS NO FURTHER OBLIGATION OR COMMITMENT
TO ADVANCE SUMS OR EXTEND ANY CREDIT FACILITY TO BORROWER.
GUARANTOR’S OBLIGATIONS HEREUNDER SHALL ALSO BE SUBJECT TO
REINSTATEMENT AS PROVIDED IN SECTION 7(c) BELOW.
GUARANTOR EXPRESSLY AGREES THAT BORROWER MAY CREATE OR INCUR
OBLIGATIONS AND MAY REPAY AND SUBSEQUENTLY CREATE OR INCUR
OBLIGATIONS, ALL WITHOUT NOTICE TO GUARANTOR, AND GUARANTOR SHALL
BE BOUND THEREBY. ALL ADVANCES TO AND BORROWINGS OF BORROWER FROM
BANK SHALL CONSTITUTE ONE SINGLE OBLIGATION GUARANTEED BY GUARANTOR
PURSUANT TO THE TERMS HEREOF.
2. If there
is more than one guarantor, the obligations hereunder are joint and
several, and whether or not there is more than one guarantor, the
obligations hereunder are independent of the obligations of
Borrower and any other person or entity, and a separate action or
actions may be brought and prosecuted against Guarantor whether
action is brought against Borrower or whether Borrower be joined in
any such action or actions. Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or the
enforcement thereof, to the extent permitted by law.
Guarantor’s liability under this Guaranty is not conditioned
or contingent upon the genuineness, validity, regularity or
enforceability of the Agreement.
3. Guarantor
authorizes Bank, without notice or demand and without affecting its
liability hereunder, from time to time to (a) renew, extend,
or otherwise change the terms of the Agreement or any part thereof;
(b) take and hold security for the payment of this Guaranty or
the Agreement, and exchange, enforce, waive and release any such
security; and (c) apply such security and direct the order or
manner of sale thereof as Bank in its sole discretion may
determine.
4. Guarantor
understands and agrees that (a) Bank may, at any time after
the occurrence and during the continuance of an Event of Default,
at its discretion, proceed against Guarantor and/or any security
for this Guaranty in such order and manner as Bank shall determine
in its sole discretion, provided that, Bank shall apply all cash
collateral on deposit with Bank or Commerce Capital Markets which
is at any time pledged by any Borrower or Guarantor as security for
the Obligations toward the Obligations before proceeding against
Guarantor; (b) Guarantor’s liability under this Guaranty
is not limited to the value or proceeds realized by Bank from a
sale or other liquidation of any collateral for this
Guaranty;
(c) Bank may, after the occurrence and during the continuance
of an Event of Default, proceed against any and all assets of
Guarantor to obtain payment hereunder; and (d) to the extent
any collateral for this Guaranty secures any other obligations of
Guarantor to Bank, Bank may apply such collateral and proceeds
thereof to sums owing hereunder and/or such other obligations in
such order or manner as Bank shall determine in its sole
discretion.
5. Until all
of the amounts that Borrower owes to Bank have been paid in full,
Guarantor shall have no right of subrogation or reimbursement,
contribution or other rights against Borrower, and Guarantor waives
any right to enforce any remedy that Bank now has or may hereafter
have against Borrower. Guarantor waives all rights to participate
in any security now or hereafter held by Bank. Guarantor assumes
the responsibility for being and keeping itself informed of the
financial condition of Borrower and of all other circumstances
bearing upon the risk of nonpayment of any indebtedness or
nonperformance of any obligation of Borrower, warrants to Bank that
it will keep so informed, and agrees that absent a request for
particular information by Guarantor, Bank shall not have any duty
to advise Guarantor of information known to Bank regarding such
condition or any such circumstances.
6. The
obligations of Guarantor hereunder are primary, absolute,
independent, irrevocable and unconditional. This Guaranty is an
agreement of suretyship as well as of guaranty and without being
required to proceed first against Borrower or any other person or
entity, or against any other security for this Guaranty or the
Agreement, Bank may proceed directly against Guarantor upon the
occurrence and during the continuance of an Event of Default,
provided that, Bank shall apply all cash collateral on deposit with
Bank or Commerce Capital Markets which is at any time pledged by
any Borrower or Guarantor as security for the Obligations toward
the Obligations before proceeding against Guarantor.
7. (a) Subject
to subsection (c) below, this Guaranty
shall remain in full force and effect until all of the Obligations
are fully paid, complied with and performed.
(b) If
Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar
relief under any present or future provision of the United States
Bankruptcy Code, or if such a petition is filed against Borrower,
and in any such proceeding some or all of any indebtedness or
obligations under the Agreement are terminated or rejected or any
obligation of Borrower is modified or abrogated, or if
Borrower’s obligations are otherwise avoided for any reason,
Guarantor agrees that Guarantor’s liability hereunder shall
not thereby be affected or modified and such liability shall
continue in full force and effect as if no such action or
proceeding had occurred.
(c) This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if all or any portion of any payment must be returned
by Bank for any reason including, without limitation, the
insolvency, bankruptcy or reorganization of Borrower, Guarantor or
any other guarantor. If at any time a payment or payments by
Borrower or Guarantor on any of the Obligations, or any part
thereof, are subsequently invalidated, declared to be fraudulent or
preferential, set aside or are required to be repaid to a trustee,
receiver or any other person or entity under any bankruptcy act,
state or federal law, common law or equitable cause, then to the
extent of such payment or payments, the Obligations intended to be
satisfied shall be revived and continued i
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