Exhibit
10.7
UNLIMITED
GUARANTY
THIS UNLIMITED GUARANTY
(“ Guaranty ”) is made as of the 21 day
of August , 2009 by Guarantor (as hereinafter defined) for
the benefit of Bank (as hereinafter defined).
1.
Definitions . As used in this
Guaranty, the following terms have the meanings indicated
below:
“
Affiliates ,” when used with respect to any Person,
means any other Person that, directly or indirectly, controls or is
controlled by or is under common control with such Person. For
purposes of this definition “ control ”
(including the terms “ controlled by ” and under
“ common control with ”), with respect to any
person, means possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
“ Bank
” means COMPASS BANK, and its successors and assigns, whose
address for notice purposes is the following:
COMPASS BANK
8080 North Central
Expressway
Suite 320
Dallas, Texas
75206
Attn: Dallas Commercial
Funding Department
“ Borrower
” (whether one or more) means COSTAR VIDEO SYSTEMS, LLC and
such Person’s successors
and assigns.
“ Debtor
Relief Laws ” means Title 11 of the United States Code,
as now or hereafter in effect, or any other applicable law,
domestic or foreign, as now or hereafter in effect, relating to
bankruptcy, insolvency, liquidation, receivership, reorganization,
arrangement or composition, extension or adjustment of debts, or
similar laws affecting the rights of creditors.
“ Guaranteed
Indebtedness ” means (a) all indebtedness, obligations
and liabilities of Borrower to Bank of any kind or character, now
existing or hereafter arising, whether direct, indirect, related,
unrelated, fixed, contingent, liquidated, unliquidated, joint,
several or joint and several, and regardless of whether such
indebtedness, obligations and liabilities may, prior to their
acquisitions by Bank, be or have been payable to or in favor of a
third party and subsequently acquired by Bank (it being
contemplated that Bank may make such acquisitions from third
parties), including, without limitation, all indebtedness,
obligations and liabilities of Borrower to Bank now existing or
hereafter arising by note, draft, acceptance, guaranty,
endorsement, lease, letter of credit, assignment, purchase,
overdraft, discount, indemnity agreement or otherwise, (b) all
accrued but unpaid interest on any of the indebtedness described in
(a) above, and including any and all pre-and post-maturity interest
thereon, including, without limitation, post-petition interest and
expenses (including attorneys’ fees), if Borrower is the
debtor in a bankruptcy proceeding under the Debtor Relief Laws,
whether or not allowed under any Debtor Relief Law, (c) all
obligations incurred by Borrower under any agreement between
Borrower and Bank or any affiliate of Bank, including but not
limited to an ISDA Master Agreement, whether now existing or
hereafter executed, which provides for an interest rate, currency,
equity, credit or commodity swap, cap, floor or collar, spot or
foreign currency exchange transaction, cross currency rate swap,
currency option, any combination of, or option with respect to, any
of the foregoing or similar transactions, for the purpose of
hedging the Borrower’s exposure to fluctuations in interest
rates, currency, stock, portfolio or loan valuations or commodity
prices (each a “ Hedge Agreement ”); (d) all
obligations of Borrower and other Persons to Bank under any
documents evidencing, securing, governing and/or pertaining to all
or any part of the indebtedness described in (a), (b) and (c) above
(collectively, the “ Loan Documents ,” which
shall include this Guaranty), (e) all reasonable costs and expenses
incurred by Bank in connection with the collection and
administration of all or any part of the indebtedness and
obligations described in (a), (b), (c) and (d) above or the
protection or preservation of, or realization upon, the collateral
securing all or any part of such indebtedness and obligations,
including, without limitation, all reasonable attorneys’
fees, and (f) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in
(a), (b), (c), (d) and (e) above.
UNLIMITED GUARANTY
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“ Guarantor
” (whether one or more) means SIELOX, INC. and such
Person’s successors and assigns, whose address for notice
purposes is the following:
SIELOX, INC.
170 East Ninth
Avenue
Runnemede, NJ
08078
“ Person
” means any individual, corporation, partnership, joint
venture, limited liability company or partnership (general or
limited), association, trust, unincorporated association, joint
stock company, government, municipality, political subdivision or
agency, or other entity.
2.
Payment
. Guarantor
is an Affiliate of Borrower and the extension of credit to Borrower
is a substantial and direct benefit to Guarantor. As an inducement
to Bank to extend or continue to extend credit and other financial
accommodations to Borrower, Guarantor, for value received, jointly
and severally, does hereby unconditionally and absolutely guarantee
the prompt and full payment and performance of the Guaranteed
Indebtedness when due or declared to be due in accordance with the
terms and provisions of the Loan Documents, and at all times
thereafter. Guarantor shall promptly pay the amount due thereon to
Bank within three (3) days of the date the same is due or declared
to be due, without notice or demand, of any kind or nature, in
lawful money of the United States of America.
3.
Character of
Obligations . This is an absolute,
continuing and unconditional guaranty of payment and not of
collection and if at any time or from time to time there is no
outstanding Guaranteed Indebtedness, the obligations of Guarantor
with respect to any and all Guaranteed Indebtedness incurred
thereafter shall not be affected. All Guaranteed Indebtedness
heretofore, concurrently herewith or hereafter made by Bank to
Borrower shall be conclusively presumed to have been made or
acquired in acceptance hereof. Guarantor shall be liable, jointly
and severally, with Borrower and any other guarantor of all or any
part of the Guaranteed Indebtedness.
4.
No Right of
Revocation .
Guarantor understands and agrees that Guarantor may not
revoke its future obligations under this Guaranty at any time as
long as any Guaranteed Indebtedness is outstanding or as long as
Bank is under any obligation to extend credit, in any form, to
Borrower. If Guarantor is an individual and dies, Guarantors
obligations under this Guaranty shall be binding on Guarantors
estate.
5.
Representations and
Warranties .
Guarantor hereby represents and warrants the following
to Bank:
(a)
This Guaranty may
reasonably be expected to benefit, directly or indirectly,
Guarantor, and (i) if Guarantor is a corporation or limited
liability company, the Board of Directors or other governing body
of Guarantor has determined that this Guaranty may reasonably be
expected to benefit, directly or indirectly, Guarantor, or (ii) if
Guarantor is a partnership, the requisite number of its partners
have determined that this Guaranty may reasonably be expected to
benefit, directly or indirectly, Guarantor, and (iii) the value of
the consideration received and to be received by Guarantor is
reasonably worth at lest as much as the liability and obligation of
Guarantor hereunder, and such liability and obligation may
reasonably be expected to benefit Guarantor directly or
indirectly;
(b)
Guarantor has adequate
means to obtain from Borrower on a continuing basis information
concerning the financial condition of Borrower and Guarantor is not
relying on Bank to provide such information to Guarantor either now
or in the future; and
(c)
Guarantor has the power
and authority to execute, deliver and perform this Guaranty and any
other agreements executed by Guarantor contemporaneously herewith,
and the execution, delivery and performance of this Guaranty and
any other agreements executed by Guarantor contemporaneously
herewith do not and will not violate (i) any agreement or
instrument to which Guarantor is a party, (ii) any law, rule,
regulation or order of any governmental authority to which
Guarantor is subject, or (iii) its organizational documents;
and
(d)
Neither Bank nor any
other party has made any representation or warranty to Guarantor in
order to induce Guarantor to execute this Guaranty; and
UNLIMITED GUARANTY
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(e)
The financial
statements and other financial information regarding Guarantor
heretofore and hereafter delivered to Bank are and shall be true
and correct in all material respects and fairly present the
financial position of Guarantor as of the dates thereof, and no
material adverse change has occurred in the financial condition of
Guarantor reflected in the financial statements and other financial
information regarding Guarantor heretofore delivered to bank since
the date of the last statement thereof; and
(f)
As of the date hereof,
and after giving effect to this Guaranty and the obligations
evidenced hereby, (i) Guarantor is and will be solvent, (ii) the
fair saleable value of Guarantors assets exceeds and will continue
to exceed its liabilities (both fixed and contingent), (iii)
Guarantor is and will continue to be able to pay its debts as they
mature, and (iv) if Guarantor is not an individual, Guarantor has
and will continue to have sufficient capital to carry on its
business and all businesses in which it is about to
engage.
6.
Covenants
. Guarantor
hereby covenants and agrees with Bank as follows:
(a)
Guarantor shall not, so
long as its obligations under this Guaranty continue, transfer or
pledge any material portion of its assets for less than full and
adequate consideration; and
(b)
Guarantor shall
promptly furnish to Bank from time to time such financial
statements and other financial information of Guarantor as Bank may
reasonably require, in form and substance satisfactory to Bank;
provided , however , if, pursuant to the other Loan
Documents, Guarantor is obligated to provide financial statements
to Bank at specific times and in a specific format, those
provisions shall control over this Section 6(b) ;
and
(c)
Guarantor shall
promptly furnish to Bank such additional information concerning
Guarantor as Bank may reasonably request; and
(d)
Guarantor shall comply
with all terms and provisions of the Loan Documents that apply to
Guarantor; and
(e)
Guarantor shall
promptly inform Bank of (i) any litigation or governmental
investigation against Guarantor or affecting any security for all
or any part of the Guaranteed Indebtedness or this Guaranty which,
if determined adversely, might reasonably be expected to have a
material adverse effect upon the financial condition of Guarantor
or upon such security or might reasonably be excepted to cause a
default under any of the Loan documents, (ii) any claim or
controversy which might reasonably be expected to become the
subject of such litigation or governmental investigation, and (iii)
any material adverse change in the financial condition of
Guarantor.
7.
Consent and
Waiver .
(a)
Except as otherwise
provided herein Guarantor waives (i) promptness, diligence and
notice of acceptance of this Guaranty and notice of the incurring
of any obligation, indebtedness or liability to which this Guaranty
applies or may apply and, except as expressly required by this
Guaranty or the other Loan Documents, waives presentment for
payment, notice of nonpayment, protest, demand, notice of protest,
notice of intent to accelerate, notice of acceleration, notice of
dishonor, diligence in enforcement and indulgences of every kind,
and (ii) the taking of any other action by Bank, including, without
limitation, giving any notice of default or any other notice to, or
making any demand on, Borrower, any other guarantor of all or any
part of the Guaranteed Indebtedness or any other party.
(b)
Guarantor waives any
rights Guarantor has under, or any requirements imposed by, (i)
Chapter 34 of the Texas Business and Commerce Code, as amended
(except rights under Section 34.04), (ii) Section 17.001 of the
Texas Civil Practice and Remedies Code, as amended, (iii) Rule 31
of the Texas Rules of Civil Procedure, as amended, and (iv) any and
all rights under Section 51.005 of the Texas Property Code, as
amended.
UNLIMITED GUARANTY
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