EXHIBIT 10.2
MASTER UNLIMITED GUARANTY
MASTER UNLIMITED GUARANTY, ("Guaranty") dated as of September 1, 2004
by each of DYNAMICS RESEARCH CORPORATION, a Massachusetts corporation, DRC
INTERNATIONAL CORPORATION, a Massachusetts corporation, X.X. XXXX ASSOCIATES,
INC., a Delaware corporation, XXXXXXXX CORPORATION, a Delaware corporation, and
IMPACT INNOVATIONS GROUP LLC, a Delaware limited liability company (hereinafter,
singly a "Guarantor" and collectively, the "Guarantors"), in favor of XXXXX
BROTHERS XXXXXXXX & CO., a New York general partnership with offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, for itself and as Administrative Agent (the
"Agent") for each of the Lenders (defined below) which are and which may become
parties to the Loan Agreement (defined below). All capitalized terms used
herein, and not otherwise defined herein, shall have the meanings set forth in
the Loan Agreement. In consideration of the Agent's and the Lenders' giving, in
their discretion, credit or banking facilities or accommodations to each of
those persons described on Exhibit A annexed hereto and incorporated herein by
reference (each such person, together with its successors, individually a
"Customer" and collectively, the "Customers"), each Guarantor jointly and
severally agrees as follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor, jointly and
severally hereby guarantees to the Agent and each Lender the full and
punctual payment when due (whether at maturity, by acceleration or
otherwise), and the performance, of all Liabilities of any Customer to
the Agent or to any Lender in connection with that certain Second
Amended and Restated Loan Agreement dated as of even date herewith (as
same may be amended, modified or replaced, the "Loan Agreement"), made
by and among the Customers, the Agent, Banknorth, N.A., as
Documentation Agent, KeyBank National Association and Fleet National
Bank, a Bank of America company, each as Co-Syndication Agents, and
each of Xxxxx Brothers Xxxxxxxx & Co., Banknorth, N.A., KeyBank
National Association and Fleet National Bank, a Bank of America
company, as lenders, and such other lenders which may hereafter become
parties to the Loan Agreement (each a "Lender" and collectively, the
"Lenders"). This Guaranty is an absolute, unconditional and continuing
guaranty of the full and punctual payment and performance of the
Liabilities and not of their collectibility only and is in no way
conditioned upon any requirement that the Agent first attempt to
collect any of the Liabilities from any Customer or resort to any
security or other means of obtaining their payment. Upon the occurrence
and continuance of any Event of Default, the obligations of the
Guarantor hereunder shall become immediately due and payable to the
Agent and the Lenders, without demand or notice of any nature, all of
which are expressly waived by each Guarantor. Payments by any Guarantor
hereunder may be required by the Agent on any number of occasions.
2. GUARANTORS' AGREEMENT TO PAY. Each Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the Agent for
the ratable benefit of
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the Lenders, on demand, all costs and expenses (including court costs
and legal expenses) incurred or expended by the Agent in connection
with the Liabilities, this Guaranty and the enforcement thereof,
together with interest on amounts recoverable under this Guaranty from
the time such amounts become due until payment, at the rate per annum
equal to the default rate set forth in the Loan Agreement applicable to
the Liabilities after the occurrence and continuance of any Event of
Default; provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be
reduced to such maximum permitted amount.
3. UNLIMITED GUARANTY. The liability of the Guarantor hereunder shall be
unlimited.
4. WAIVERS BY GUARANTORS; AGENT'S FREEDOM TO ACT. Each Guarantor agrees
that the Liabilities will be paid and performed strictly in accordance
with their respective terms 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 Agent with respect thereto. Each Guarantor
waives presentment, demand, protest, notice of acceptance, notice of
Liabilities incurred and all other notices of any kind, all defenses
which may be available by virtue of any valuation, stay, moratorium law
or other similar law now or hereafter in effect, any right to require
the marshalling of assets of the Customers, and all suretyship defenses
generally. Without limiting the generality of the foregoing, each
Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any Liability and
agrees that the obligations of the Guarantors hereunder shall not be
released or discharged, in whole or in part, or otherwise affected by
(i) the failure of the Agent to assert any claim or demand or to
enforce any right or remedy against any Customer; (ii) any extensions
or renewals of any Liability; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or provisions of any
agreement evidencing, securing or otherwise executed in connection with
any Liability; (iv) the substitution or release of any entity primarily
or secondarily liable for any Liability; (v) the adequacy of any rights
the Agent or any Lender may have against any collateral or other means
of obtaining repayment of the Liabilities; (vi) the impairment of any
collateral securing the Liabilities, including without limitation the
failure to perfect or preserve any rights the Agent might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of the
Guarantor or otherwise operate as a release or discharge of the
Guarantor, all of which may be done without notice to the Guarantor.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST CUSTOMERS. If for any reason
any Customer has no legal existence or is under no legal obligation to
discharge any of the Liabilities, or if any of the Liabilities have
become irrecoverable from any Customer by operation of law or for any
other reason, this Guaranty shall nevertheless be binding on the
Guarantors to the same extent as if the Guarantors at all times had
been the principal obligor on all such Liabilities. In the event that
acceleration of the time for
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payment of the Liabilities is stayed upon the insolvency, bankruptcy or
reorganization of any Customer, or for any other reason, all such
amounts otherwise subject to acceleration under the terms of any
agreement evidencing, securing or otherwise executed in connection with
any Liability shall be immediately due and payable by the Guarantors.
6. SUBROGATION; SUBORDINATION. No Guarantor shall exercise any rights
against any Customer or any other Guarantor arising as a result of
payment by any Guarantor hereunder, by way of subrogation or otherwise,
and will not prove any claim in competition with the Agent or any
Lender or its affiliates in respect of any payment hereunder in
bankruptcy or insolvency proceedings of any nature; no Guarantor will
claim any set-off or counterclaim against any Customer in respect of
any liability of the Guarantors to any Customer or any other Guarantor;
and each Guarantor waives (until the Agent and each Lender is paid in
full) any benefit of and any right to participate in any collateral
which may be held by the Agent or any such affiliate. The payment of
any amounts due with respect to any indebtedness of any Customer now or
hereafter held by any Guarantor is hereby subordinated to the prior
payment in full of the Liabilities, provided that so long as no default
in the payment or performance of the Liabilities has occurred and is
continuing, or no demand for payment of any of the Liabilities has been
made that remains unsatisfied, the Customers may make and the
Guarantors may receive payments or performance of any obligations to
Guarantors which are permitted under the Loan Agreement. Each Guarantor
agrees that after the occurrence and during the continuance of any
default in the payment or performance of the Liabilities, no Guarantor
will demand, xxx for or otherwise attempt to collect any such
indebtedness of any Customer to any Guarantor until the Liabilities
shall have been paid in full. If, notwithstanding the foregoing
sentence, any Guarantor shall collect, enforce or receive any amounts
in respect of such indebtedness, such amounts shall be collected,
enforced and received by such Guarantor as trustee for the Agent and be
paid over to the Agent on account of the Liabilities without affecting
in any manner the liability of such Guarantor under the other
provisions of this Guaranty.
7. SECURITY; SET-OFF. Regardless of the adequacy of any Collateral, during
the continuance of any Event of Default, any deposits (general or
specific, time or demand, provisional or final, regardless of currency,
maturity, or the branch of where such deposits are held) or other sums
credited by or due from any of the Lenders to any of the Guarantors and
any securities or other property of the Guarantors in the possession of
such Lender may be applied to or set off against the payment of
Liabilities and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Guarantors to the Lenders. Each Lender, by its
acceptance of this Guaranty, hereby agrees that any payment received by
Lender hereunder shall be subject to the terms and conditions set forth
in Section 16-12 of the Loan Agreement.
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8. FURTHER ASSURANCES. Each Guarantor also agrees to do all such things
and execute all such documents, including financing statements, as the
Agent may consider necessary or desirable to give full effect to this
Guaranty and to perfect and preserve the rights and powers of the Agent
hereunder. In addition, each Guarantor agrees that it will not incur
any indebtedness, other than any indebtedness permitted under the Loan
Agreement.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force
and effect until the Agent is given written notice of the Guarantors'
intention to discontinue this Guaranty, notwithstanding any
intermediate or temporary payment or settlement of the whole or any
part of the Liabilities. No such notice shall be effective unless
received and acknowledged by an officer of the Agent at the address
provided for in Article 14 of the Loan Agreement. No such notice shall
affect any rights of the Agent or any Lender or of any affiliate
hereunder including, without limitation, the rights set forth in
Sections 4 and 6, with respect to Liabilities incurred prior to the
receipt of such notice or Liabilities incurred pursuant to any contract
or commitment in existence prior to such receipt, and all checks,
drafts, notes, instruments (negotiable or otherwise) and writings made
by or for the account of the Customers and drawn on the Agent or any
Lender or any of their agents purporting to be dated on or before the
date of receipt of such notice, although presented to and paid or
accepted by the Agent or such Lender after that date, shall form part
of the Liabilities. This Guaranty shall continue to be effective or be
reinstated, notwithstanding any such notice, if at any time, any
payment made or value received with respect to a Liability is rescinded
or must otherwise be returned by the Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Customer, or otherwise,
all as though such payment had not been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor, its respective successors and assigns, and shall inure to
the benefit of and be enforceable by the Agent and its successors,
transferees and assigns. Without limiting the generality of the
foregoing sentence, (i) the Agent or any Lender may, to the extent
permitted by such agreement or note, assign or otherwise transfer any
agreement or any note held by it evidencing, securing or otherwise
executed in connection with the Liabilities, or sell participations in
any interest therein, to any other person or entity, and (ii) such
other person or entity shall thereupon become vested, to the extent set
forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to the
Agent and such Lender herein.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by any Guarantor therefrom shall
be effective unless the same shall be in writing and signed by the
Agent pursuant to the provisions of the Loan Agreement. No failure on
the part of the Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single
or
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partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
12. NOTICES. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided
herein, shall be deemed to have been duly made or given when delivered
by in accordance with the provisions of Article 14 of the Loan
Agreement.
13. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty is intended to
take effect as a sealed instrument and shall be governed by, and
construed in accordance with, the laws of The Commonwealth of
Massachusetts. Each Guarantor agrees that any suit for the enforcement
of this Guaranty may be brought in the courts of The Commonwealth of
Massachusetts or any Federal Court sitting therein, consents to the
non-exclusive jurisdiction of such court and agrees that a summons and
complaint commencing an action or proceeding in any such court shall be
properly served and shall confer personal jurisdiction if served
personally or by certified mail to such Guarantor at its address
provided in Article 14 of the Loan Agreement or as otherwise provided
under the laws of The Commonwealth of Massachusetts. Each Guarantor
hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit was brought
in an inconvenient court.
14. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
Guarantors with respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement, and this Guaranty
shall be in addition to any other guaranty of the Liabilities. The
invalidity or unenforceability of any one or more sections of this
Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and
shall not affect the meaning of the relevant provisions. The meanings
of all defined terms used in this Guaranty shall be equally applicable
to the singular and plural forms of the terms defined.
15. JURY WAIVER. THE AGENT (BY ITS ACCEPTANCE HEREOF) AND EACH GUARANTOR
AGREE THAT NONE OF THEM, INCLUDING ANY ASSIGNEE OR SUCCESSOR SHALL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS GUARANTY, ANY
RELATED INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN OR AMONG ANY OF THEM. NEITHER THE AGENT NOR ANY GUARANTOR SHALL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE AGENT AND THE GUARANTORS,
AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER THE
AGENT NOR ANY
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GUARANTOR HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
16. AMENDED AND RESTATED GUARANTY. This Guaranty amends and restates any
Guaranty executed and delivered previously by any Guarantor in
connection with the Existing Loan Agreement.
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IN WITNESS WHEREOF, each Guarantor has executed and delivered this
Guaranty, or caused this Guaranty to be executed and delivered by its duly
authorized officer, as of the date appearing on page one.
DYNAMICS RESEARCH CORPORATION
WITNESS (as to all):
_________________________ By____________________________
Name:_________________________
Title:________________________
DRC INTERNATIONAL CORPORATION
By____________________________
Name:_________________________
Title:________________________
X.X. XXXX ASSOCIATES, INC.
By____________________________
Name:_________________________
Title:________________________
XXXXXXXX CORPORATION
By____________________________
Name:_________________________
Title:________________________
IMPACT INNOVATIONS GROUP LLC
By____________________________
Name:_________________________
Title:________________________
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Annex A
DYNAMICS RESEARCH CORPORATION, a Massachusetts corporation,
DRC INTERNATIONAL CORPORATION, a Massachusetts corporation,
X.X. XXXX ASSOCIATES, INC., a Delaware corporation,
XXXXXXXX CORPORATION, a Delaware corporation, and
IMPACT INNOVATIONS GROUP LLC, a Delaware limited liability company
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