EXHIBIT 10(AA)
SUNTRUST UNLIMITED CONTINUING GUARANTY AGREEMENT
The "Lender" referred to in this Agreement is SunTrust Bank.
Lender's address is ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Guarantor: Borrower:
▇▇▇▇▇ Corporation ▇▇▇▇▇ Systems, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 601 Independent Street
Providence, Rhode Island 02903 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
1. CONSIDERATION. To induce Lender to extend credit or other financial
accommodations to Borrower, or to continue to extend credit or other financial
accommodations to Borrower, and in consideration therefor, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor (which term shall mean each Guarantor named herein
individually and all Guarantors named herein collectively) does hereby agree as
follows:
2. DEFINITIONS:
2.1. "Lender" shall include the bank set forth above and any Person
acting as its nominee or agent, and any member of its "affiliated
group" as such term is defined in Section 1504(a) of the Internal
Revenue Code of 1986, as amended.
2.2. "Liability" and "Liabilities" shall include all of the
Obligations as defined in that certain Amended and Restated Credit
Agreement, dated as of the date hereof, by and between the Lender and
the Borrower (as the same may be amended from time to time, the "Credit
Agreement") and the other Credit Documents referred to in the Credit
Agreement, including all renewals, extensions, modifications, and
refinancings thereof, now or hereafter existing, whether for principal,
interests, fees, expenses or otherwise, and all expenses (including
reasonable attorney's fees and expenses) actually incurred by Lender in
enforcing any of its rights hereunder or under the Credit Agreement and
the other Credit Documents.
2.3. "Borrower" shall mean, individually and collectively, any
individual or individuals, association, partnership, corporation or
other entity named herein as Borrower and (i) all successors and
assigns of the Borrower, (ii) any individual or individuals,
association, partnership, corporation or other entity to which all or
substantially all of the business or assets of said Borrower shall have
been transferred, (iii) in the case of a partnership Borrower, any new
partnership which shall have been created by reason of the admission of
any new partner or partners therein and/or the dissolution of the
existing partnership by the death, resignation or other withdrawal of
any partner, and (iv) in the case of a corporate Borrower, any other
corporation into or with which said Borrower shall have been merged,
consolidated, reorganized, purchased or absorbed.
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2.4. "Person" and "Persons" shall include natural persons,
partnerships, and incorporated and unincorporated entities and
associations of every kind.
3. OBLIGATION OF GUARANTOR. Guarantor hereby absolutely and
unconditionally delivers this Guaranty to Lender and hereby absolutely and
unconditionally guarantees to Lender and any transferee of this Guaranty or of
any Liability guaranteed hereby, the prompt and full payment of all Liabilities.
Guarantor agrees that if Borrower fails to fully and timely perform any
Liability, Guarantor will fully and timely perform the Liability without resort
by the Lender to any other Person. Any obligation of the Guarantor hereunder is
in addition to and shall not prejudice or be prejudiced by any other agreement,
instrument, surety or guaranty (including any other agreement, instrument,
surety or guaranty signed by Guarantor) which Lender may now or hereafter hold
relative to any of the Liabilities. Any payment of Guarantor hereunder may be
applied to any of the Liabilities as Lender may choose. The obligation of
Guarantor to Lender hereunder is primary, absolute and unconditional.
4. TERM OF GUARANTY. Guarantor acknowledges that there may be future
advances by Lender to Borrower (although Lender may be under no obligation to
make such advances) and that the number and amount of the Liabilities are
unlimited and may fluctuate from time to time hereafter. Guarantor expressly
agrees that Guarantor's obligation hereunder shall remain absolute, primary and
unconditional notwithstanding such future advances and fluctuations, if any, and
agrees that, in any event, this agreement is a continuing guaranty and shall
remain in force at all times hereafter, whether there are any Liabilities
outstanding or not, until all originals hereof are returned to Guarantor by
Lender or until a written notice from Guarantor terminating this Guaranty has
been received and acknowledged by Lender, but such written termination shall not
release Guarantor from any obligation for payment of (i) any and all Liabilities
then in existence; (ii) any renewals or extensions thereof, in whole or in part,
whether such renewals or extensions are made before or after such termination;
and (iii) any damages, losses, costs, interest, charges, attorneys fees or
expenses then or thereafter incurred in connection with the Liabilities or any
renewals or extensions thereof.
5. PROPERTY IN LENDER'S POSSESSION. As security for the payment of the
Liabilities and the obligation of Guarantor hereunder, Guarantor hereby assigns
and grants a security interest to Lender in: (i) all property of Guarantor in or
coming into the possession, control, or custody of Lender, or in which Lender
has or hereafter acquires a lien, security interest, or other right; and (ii)
any existing or hereafter created lien or security interest in favor of
Guarantor in any property of Borrower. Guarantor hereby agrees that any rights
Guarantor may now or hereafter have in any collateral securing any of the
Liabilities or against Borrower or any property of Borrower, including rights
arising by virtue of subrogation or otherwise, shall be subordinate and junior
to Lender's rights to said collateral or property and to Lender's indefeasible
right to the prior payment of the Liabilities. Guarantor hereby grants to Lender
a lien on, and a security interest in, the deposit balances, funds, accounts,
items, certificates of deposit, securities, other property and the monies of
Guarantor now or hereafter in the possession or custody of Lender for any
purpose (including property left in safekeeping or custody) or on deposit with
Lender to secure, and as collateral for, the payment and performance of this
Guaranty as well as of any other obligation or liability (present or future,
absolute or contingent, due or not due) of Guarantor to Lender. Lender may at
any time and from time to time,
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without demand or notice, appropriate and set off against such deposit balances,
funds, accounts, items, certificates of deposit, securities, other property and
monies and apply the same to the obligations of Guarantor hereunder.
6. CONSENT TO LENDER'S ACTS. Guarantor hereby consents and agrees that, at
any time or times, without notice to or further approval of Guarantor or
Borrower, and without in any way affecting the obligation of Guarantor
hereunder, Lender may, with or without consideration: (i) release, compromise,
or agree not to ▇▇▇, in whole or in part, Borrower, any Guarantor or any other
obligor, guarantor, endorser or surety upon any of the Liabilities; (ii) waive,
rescind, renew, extend, modify, increase, decrease, delete, terminate, amend, or
accelerate in accordance with its terms, either in whole or in part, any of the
Liabilities, any of the terms thereof, or any agreement, covenant, condition, or
obligation of or with Borrower, any Guarantor, or any other obligor, guarantor,
endorser or surety upon any of the Liabilities; and (iii) apply any payment
received from Borrower, any Guarantor or any other obligor, guarantor, endorser
or surety upon any of the Liabilities to any of the Liabilities which Lender may
choose. Further, Lender may at any time, either with or without consideration,
surrender, release or receive any property or other security of any kind or
nature whatsoever held by it or any Person on its behalf or for its account
securing any indebtedness of Borrower or any Liability, or substitute any
collateral so held by Lender for other collateral of like kind, or of any kind,
without notice to or further consent from Guarantor, and such surrender,
receipt, release or substitution shall not in any way affect the obligation of
Guarantor hereunder. Lender shall have full authority to adjust, compromise and
receive less than the amount due upon any such collateral, and may enter into
any accord and satisfaction agreement as deemed advisable by Lender without
affecting the obligation of Guarantor hereunder. Lender shall be under no duty
to undertake to collect upon such collateral or any part thereof, and shall not
be liable for any negligence or mistake in judgment in handling, disposing of,
obtaining, or failing to collect upon, or perfecting or maintaining a security
interest in, any such collateral and any such actions by Lender will not release
Guarantor from any obligation under this Guaranty.
7. WAIVERS BY GUARANTOR. Guarantor waives: (i) notice of acceptance of
this Guaranty by Lender and of the creation, extension or renewal of any
Liability to which it relates and of any default by Borrower; (ii) notice of
presentment, demand for payment, notice of dishonor or protest of any of
Borrower's obligations or the obligation of any Person held by Lender as
collateral security for any Liability; (iii) notice of the failure of any Person
to pay to Lender any indebtedness held by Lender as collateral security for any
Liability; (iv) failure of Lender to obtain and perfect or maintain the
perfection or priority of any security interest or lien on property to secure
any Liability; (v) any defense resulting from the failure of Lender to have any
other Person execute this Guaranty or execute any other guaranty relating to a
credit facility granted to Borrower; (vi) any failure to promptly commence suit
against any party thereto or liable thereon or to give any notice to or make any
claim or demand upon Guarantor or Borrower; and (vii) all defenses, offsets and
counterclaims which Guarantor may at any time have to any claim of Lender
against Borrower. No act, failure to act, or omission of any kind on the part of
Guarantor, Borrower, Lender or any Person shall be a legal or equitable
discharge or release of Guarantor hereunder unless agreed to hereafter in
writing by Lender. This Guaranty shall not be affected by any change which may
arise by reason of the death of Guarantor, or of any partner(s) of Guarantor, or
of Borrower, or by reason of the accession to any such partnership of any one or
more new partners. Guarantor further agrees that this instrument shall
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continue to be effective or be reinstated as the case may be, if at any time
payment, or any part thereof, of the principal or interest on any of the
Liabilities is rescinded or must otherwise be restored or returned by Lender
upon the insolvency, bankruptcy or reorganization of Borrower, or otherwise, all
as though such payment had not been made.
8. BORROWER AUTHORIZATION. This Guaranty covers all Liabilities to Lender
purporting to be made on behalf of Borrower by any officer, agent or partner of
Borrower, without regard to the actual authority of such officer, agent or
partner to bind Borrower, and without regard to the capacity of Borrower or
whether the organization or charter of Borrower is in any way defective.
9. PAYMENT EVENTS, SUBROGATION RIGHTS. In the event of: (i) the insolvency
(as defined in the Uniform Commercial Code as in effect at the time) of Borrower
or any Guarantor; or (ii) written notice from any Guarantor terminating this
Guaranty is received and acknowledged by Lender, and whether or not any such
event occurs at a time when any Liabilities are otherwise due and payable,
Guarantor agrees to pay to Lender upon demand the full amount which would be
payable hereunder by Guarantor if all Liabilities were then due and payable. If
a bankruptcy or insolvency action be filed by or against Borrower or any
Guarantor or if a receiver be appointed for any part of the property or assets
of Borrower or any Guarantor, whether or not such event occurs at a time when
any of the Liabilities are otherwise due and payable, then simultaneously
therewith Guarantor will be obligated to pay to Lender the full amount which
would be payable hereunder by Guarantor if all Liabilities were then due and
payable, all without notice or demand from Lender. Until all obligations of
Guarantor to Lender have been paid in full, Guarantor shall have no right of
subrogation and hereby waives any right to enforce any remedy which Lender now
has or may hereafter have against Borrower and any benefit of, and any right to
participate in, any collateral now or hereafter held by Lender.
10. SUBORDINATION. In the event that for any reason whatsoever, Borrower is
now or hereafter becomes indebted to Guarantor, Guarantor agrees that the amount
of such indebtedness and all interest thereon shall at all times be subordinate
as to lien, time of payment and in all other respects to all Liabilities which
are covered by this Guaranty, and that Guarantor shall not be entitled to
enforce or receive payment thereof until all sums then due and owing to Lender
shall have been paid in full. If any payment shall have been made to Guarantor
by Borrower on any said indebtedness during any time that there are Liabilities
outstanding, Guarantor shall hold in trust all such payments for the benefit of
Lender and shall make said payments to Lender to be credited and applied against
the Liabilities, whether matured or unmatured, in accordance with the discretion
of Lender.
11. REPRESENTATIONS BY GUARANTOR. Guarantor represents that, at the time of
the execution and delivery of this Guaranty, nothing exists to impair the
effectiveness of the obligation of Guarantor to Lender hereunder, or this
Guaranty becoming effective immediately.
12. REMEDIES OF LENDER. Lender may at its option proceed in the first
instance against Guarantor to collect any Liability, without first proceeding
against Borrower for said Liability, or any other Person liable for said
Liability, and without first resorting to any property at any time held by
Lender as collateral security for any Liability and without any marshalling of
assets whatsoever. Guarantor further authorizes Lender, without notice or
demand, to apply any indebtedness due or to
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become due to Guarantor from Lender in satisfaction of any of the Liabilities
and Guarantor's obligation hereunder, including, but not limited to, the right
to set-off against any deposits of Guarantor with Lender. Lender shall further
have any other rights provided by law or under any other document, all of which
rights are cumulative. The obligation of each Guarantor hereby created is joint
and several, and Lender is authorized and empowered to proceed against Guarantor
or any of them, without joining Borrower or any other Guarantor. All of said
parties may be sued together, or any of them may be sued separately without
first or contemporaneously suing the others. There shall be no duty or
obligation upon Lender, whether by notice or otherwise: (i) to proceed against
Borrower or any other Guarantor; (ii) to initiate any proceeding or exhaust any
remedy against Borrower or any other Guarantor; or (iii) to give any notice to
any other Guarantor or Borrower, whatsoever, before bringing suit, exercising
any rights to any collateral or security, or instituting proceedings of any kind
against Borrower, Guarantor or any of them.
13. INUREMENT, GOVERNING LAW, COSTS AND EXPENSES. This agreement shall bind
and inure to the benefit of Lender, its successors and assigns, and likewise
shall bind and inure to the benefit of Guarantor, the heirs, executors,
administrators, personal representatives, estates, successors and assigns of the
Guarantor. This agreement and its performance, interpretation and enforcement
shall in all respects be governed by the laws of the State indicated in Lender's
address as shown above. Guarantor waives any and all privilege and rights which
Guarantor may have under state statute, relating to venue, as it now exists or
may hereafter be amended. Any legal action brought on this Guaranty may, at
Lender's discretion, be brought in the appropriate court for the county in which
the Lender's address, indicated above, is located or in such other court as
provided by law. If any legal action or actions are instituted by Lender to
enforce any of its rights against Guarantor hereunder, then Guarantor, jointly
and severally, agrees to pay Lender all expenses incurred by Lender relative to
such legal action or actions, including, but not limited to, court costs plus
reasonable attorney's fees actually incurred.
14. WAIVER OF HOMESTEAD EXEMPTION RIGHTS AND BORROWER DEFENSES. Guarantor
hereby ratifies, confirms, and adopts all the terms, conditions, agreements and
stipulations of all notes and other evidences of the Liabilities heretofore or
hereafter executed. Without in any way limiting the generality of the foregoing,
Guarantor waives and renounces any and all homestead or exemption rights
Guarantor may have under or by virtue of the Constitution or laws of any state,
or the United States, as against the obligation hereby created, provided,
however, that such waiver shall not apply to any obligation created hereunder
which arises from any of the Liabilities that are consumer credit transactions;
and Guarantor does hereby transfer, convey and assign, and direct any Trustee in
Bankruptcy or receiver to deliver to Lender, a sufficient amount of property or
money in any homestead or exemption that may be allowed to Guarantor to pay any
Liability in full and all costs of collection.
15. FINANCIAL STATEMENTS. At the request of Lender, Guarantor shall prepare
and deliver to Lender no more frequently than each fiscal quarter a complete and
current financial statement setting forth all the assets and liabilities of
Guarantor (and to the extent any Person other than Guarantor, including a spouse
of Guarantor, has any interest in said assets or is jointly liable for any of
said liabilities, said matters shall be set forth in their entirety in the
financial statements), signed by Guarantor under oath as being true and correct.
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16. INDEPENDENT DETERMINATION OF FACTS. Guarantor's execution of this
Guaranty was not based upon any facts or materials provided by Lender nor was
Guarantor induced to execute this Guaranty by any representation, statement or
analysis made by Lender. Guarantor acknowledges and agrees that Guarantor
assumes sole responsibility for independently obtaining any information or
reports deemed advisable by Guarantor with regard to Borrower or any other
Guarantor, and Guarantor agrees to rely solely on the information or reports so
obtained in reaching any decision to execute or not to terminate this Guaranty.
Guarantor acknowledges and agrees that Lender is and shall be under no
obligation now or in the future to furnish any information to Guarantor
concerning Borrower, the Liabilities or any other Guarantor, and that Lender
does not and shall not be deemed in the future to warrant the accuracy of any
information or representation concerning the Borrower, any Guarantor or any
other Person which may induce the Guarantor to execute or not to terminate this
Guaranty.
17. MISCELLANEOUS. All of the Lender's rights and remedies are cumulative
and those granted hereunder are in addition to any rights and remedies available
to the Lender under law. If any provision of this agreement or the application
thereof to any Person or circumstances shall to any extent, be invalid or
unenforceable, the remainder of this agreement or the application of such
provision to Persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each provision of
this agreement shall be valid and enforceable to the full extent permitted by
law. The failure or forbearance of Lender to exercise any right hereunder, or
otherwise granted to it by law or another agreement, shall not affect the
obligation of Guarantor hereunder and shall not constitute a waiver of said
right. This Guaranty contains the entire agreement between the parties, and no
provision hereof may be waived, modified, or altered except by a writing
executed by Guarantor and Lender. There is no understanding that any Person
other than or in addition to Guarantor shall execute this Guaranty. The captions
to the paragraphs are for convenience only and shall not be deemed a part of
this agreement.
18. JURY WAIVER. GUARANTOR AND LENDER HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW
OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER TO EXTEND, OR TO CONTINUE TO EXTEND CREDIT OR
OTHER FINANCIAL ACCOMMODATIONS TO BORROWER. FURTHER, GUARANTOR HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF LENDER, NOR THE LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO
REPRESENTATIVE OR AGENT OF THE LENDER, NOR LENDER'S COUNSEL HAS THE AUTHORITY TO
WAIVE, CONDITION, OR MODIFY THIS PROVISION.
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19. WAIVER OF O.C.G.A. SECTION 10-7-24. If this Guaranty is executed or
enforced in Georgia, or if the obligations guaranteed hereby are due and payable
in Georgia, or if this Guaranty is governed by the laws of Georgia, then
Guarantor waives all rights under Section 10-7-24 of the Official Code of
Georgia Annotated, as amended, including any right to require Lender to proceed
against Borrower.
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Guarantor has read, understands, and agrees to the provisions of this Guaranty
and has executed the same voluntarily, under seal, with full authority and with
the intent to be legally bound by its terms, conditions, and obligations.
Dated June 10, 2002
Guarantor:
▇▇▇▇▇ CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(SEAL)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:50 ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
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