EXHIBIT 10.7
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GENERAL CONTINUING GUARANTY
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THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of June 7, 1999, is
executed and delivered by SYSTEMS INTEGRATION SOFTWARE, a California corporation
("Guarantor"), in favor of MELLON BANK, N.A., as agent for the Lender Group
("Guarantied Party"), in light of the following:
WHEREAS, Debtor and the Lender Group are, contemporaneously herewith,
entering into the Credit Agreement; and
WHEREAS, in order to induce the Lender Group to extend financial
accommodations to Debtor pursuant to the Credit Agreement, and in consideration
thereof, and in consideration of any loans or other financial accommodations
heretofore or hereafter extended by the Lender Group to Debtor, whether pursuant
to the Credit Agreement or otherwise, Guarantor has agreed to guaranty the
Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees,
in favor of Guarantied Party, as follows:
(a) Definitions and Construction.
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a. Definitions. Capitalized terms used herein and not
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otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement. The following
terms, as used in this Guaranty, shall have the
following meanings:
"Credit Agreement" shall mean that certain Amended and
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Restated Credit and Security Agreement, dated as of even date herewith, among
Debtor and the Lender Group.
"Debtor" shall mean SM&A Corporation, a California
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corporation.
"Guarantied Obligations" shall mean: (a) the due and
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punctual payment of the principal of, and interest (including, any and all
interest which, but for the application of the provisions of the Bankruptcy
Code, would have accrued on such amounts) on, any and all premium on, and any
and all fees, costs, and expenses incurred in connection with or on the
Indebtedness owed by Debtor to Guarantied Party pursuant to the terms of the
Loan Documents; and (b) the due and punctual payment of all other present or
future Indebtedness owing by Debtor to Guarantied Party.
"Guarantied Party" shall have the meaning set forth in the
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preamble to this Guaranty.
"Guarantor" shall have the meaning set forth in the
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preamble to this Guaranty.
"Guaranty" shall have the meaning set forth in the
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preamble to this Guaranty.
"Indebtedness" shall mean any and all obligations,
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indebtedness, or liabilities of any kind or character owed by Debtor to
Guarantied Party and arising directly or indirectly out of or in connection with
the Credit Agreement or the other Loan Documents, including all such
obligations, indebtedness, or liabilities, whether for principal, interest
(including any and all interest which, but for the application of the provisions
of the Bankruptcy Code, would have accrued on such amounts), premium,
reimbursement obligations, fees, costs, expenses (including attorneys fees), or
indemnity obligations, whether heretofore, now, or hereafter made, incurred, or
created, whether voluntarily or involuntarily made, incurred, or created,
whether secured or unsecured (and if secured, regardless of the nature or extent
of the security), whether absolute or contingent, liquidated or unliquidated, or
determined or indeterminate, whether Debtor is liable individually or jointly
with others, and whether recovery is or hereafter becomes barred by any statute
of limitations or otherwise becomes unenforceable for any reason whatsoever,
including any act or failure to act by Guarantied Party.
"Lender Group" shall mean, individually and collectively,
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each of the Lenders and Guarantied Party in its capacity as agent for the
Lenders.
"Lenders" shall mean, individually and collectively, each of
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the financial institutions (including Guarantied Party) listed on the signature
pages of the Credit Agreement (together with their respective successors and
assigns)
b. Construction. Unless the context of this Guaranty
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clearly requires otherwise, references to the plural
include the singular, references to the singular
include the plural, the part includes the whole, the
terms "include" and "including" are not limiting, and
the term "or" has the inclusive meaning represented by
the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to
this Guaranty as a whole and not to any particular
provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any
and all alterations, amendments, restatements,
extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Credit
Agreement; this Guaranty; and the other Loan Documents.
Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against
Guarantied Party, the Lender Group, or Guarantor,
whether under any rule of construction or otherwise. On
the contrary, this Guaranty has been reviewed by
Guarantor, Guarantied Party, the several members of the
Lender Group, and their respective counsel, and shall
be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish
the purposes and intentions of Guarantied Party and
Guarantor.
2.
(b) Guarantied Obligations. Guarantor hereby irrevocably and
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unconditionally guaranties to Guarantied Party for the benefit of the Lender
Group, as and for its own debt, until final and indefeasible payment thereof has
been made, (a) the payment of the Guarantied Obligations, in each case when and
as the same shall become due and payable, whether at maturity, pursuant to a
mandatory prepayment requirement, by acceleration, or otherwise; it being the
intent of Guarantor that the guaranty set forth herein shall be a guaranty of
payment and not a guaranty of collection; and (b) the punctual and faithful
performance, keeping, observance, and fulfillment by Debtor of all of the
agreements, conditions, covenants, and obligations of Debtor contained in the
Credit Agreement, and under each of the other Loan Documents.
(c) Continuing Guaranty. This Guaranty includes Guarantied
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Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guarantied
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, Guarantor hereby waives any right to revoke
this Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received by Guarantied Party, (b) no such revocation shall apply to any
Guarantied Obligations in existence on such date (including any subsequent
continuation, extension, or renewal thereof, or change in the interest rate,
payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Guarantied Obligations made or created after such date to the
extent made or created pursuant to a legally binding commitment of Guarantied
Party in existence on the date of such revocation, (d) no payment by Guarantor,
Debtor, or from any other source, prior to the date of such revocation shall
reduce the maximum obligation of Guarantor hereunder, and (e) any payment by
Debtor or from any source other than Guarantor subsequent to the date of such
revocation shall first be applied to that portion of the Guarantied Obligations
as to which the revocation is effective and which are not, therefore, guarantied
hereunder, and to the extent so applied shall not reduce the maximum obligation
of Guarantor hereunder.
(d) Performance Under this Guaranty. In the event that Debtor fails
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to make any payment of any Guarantied Obligations, on or before the due date
thereof, or if Debtor shall fail to perform, keep, observe, or fulfill any other
obligation referred to in clause (b) of Section 2 hereof in the manner provided
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in the Credit Agreement or the other Loan Documents, as applicable, Guarantor
immediately shall cause such payment to be made or each of such obligations to
be performed, kept, observed, or fulfilled.
(e) Primary Obligations. This Guaranty is a primary and original
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obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions. Guarantor agrees that it is directly, jointly and
severally with any other guarantor of the Guarantied Obligations, liable to
Guarantied Party for the benefit of the Lender Group, that the obligations of
Guarantor hereunder are independent of the obligations of Debtor or any other
guarantor, and that a separate action may be brought
3.
against Guarantor, whether such action is brought against Debtor or any other
guarantor or whether Debtor or any other guarantor is joined in such action.
Guarantor agrees that its liability hereunder shall be immediate and shall not
be contingent upon the exercise or enforcement by Guarantied Party for the
benefit of the Lender Group of whatever remedies it may have against Debtor or
any other guarantor, or the enforcement of any lien or realization upon any
security Guarantied Party may at any time possess. Guarantor agrees that any
release which may be given by the Lender Group or Guarantied Party on behalf
thereof to Debtor or any other guarantor shall not release Guarantor. Guarantor
consents and agrees that the Lender Group or Guarantied Party on behalf thereof
shall be under no obligation to marshal any property or assets of Debtor or any
other guarantor in favor of Guarantor, or against or in payment of any or all of
the Guarantied Obligations.
(f) Waivers.
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c. To the fullest extent permitted by applicable
law, Guarantor hereby waives: (i) notice of
acceptance hereof; (ii) notice of any loans
or other financial accommodations made or
extended under the Credit Agreement, or the
creation or existence of any Guarantied
Obligations; (iii) notice of the amount of
the Guarantied Obligations, subject, however,
to Guarantor's right to make inquiry of
Guarantied Party to ascertain the amount of
the Guarantied Obligations at any reasonable
time; (iv) notice of any adverse change in
the financial condition of Debtor or of any
other fact that might increase Guarantor's
risk hereunder; (v) notice of presentment for
payment, demand, protest, and notice thereof
as to any instrument among the Loan
Documents; (vi) notice of any unmatured Event
of Default or Event of Default under the
Credit Agreement; and (vii) all other notices
(except if such notice is specifically
required to be given to Guarantor under this
Guaranty or any other Loan Documents to which
Guarantor is a party) and demands to which
Guarantor might otherwise be entitled.
d. To the fullest extent permitted by applicable
law, Guarantor waives the right by statute or
otherwise to require the Lender Group or
Guarantied Party on behalf thereof to
institute suit against Debtor or to exhaust
any rights and remedies which the Lender
Group or Guarantied Party on behalf thereof
has or may have against Debtor. In this
regard, Guarantor agrees that it is bound to
the payment of each and all Guarantied
Obligations, whether now existing or
hereafter arising, as fully as if such
Guarantied Obligations were directly owing to
the Lender Group or Guarantied Party on
behalf thereof by Guarantor. Guarantor
further waives any defense arising by reason
of any disability or other defense (other
than the defense that the Guarantied
Obligations shall have been fully and finally
performed and indefeasibly paid)
4.
of Debtor or by reason of the cessation from
any cause whatsoever of the liability of
Debtor in respect thereof.
e. To the fullest extent permitted by applicable
law, Guarantor hereby waives: (i) any rights
to assert against the Lender Group or
Guarantied Party on behalf thereof any
defense (legal or equitable), set-off,
counterclaim, or claim which Guarantor may
now or at any time hereafter have against
Debtor or any other party liable to the
Lender Group or Guarantied Party on behalf
thereof; (ii) any defense, set-off,
counterclaim, or claim, of any kind or
nature, arising directly or indirectly from
the present or future lack of perfection,
sufficiency, validity, or enforceability of
the Guarantied Obligations or any security
therefor; (iii) any defense arising by reason
of any claim or defense based upon an
election of remedies by the Lender Group or
Guarantied Party on behalf thereof including
any defense based upon an election of
remedies by the Lender Group or Guarantied
Party on behalf thereof under the provisions
of (S)(S) 580d and 726 of the California Code
of Civil Procedure, or any similar law of
California or any other jurisdiction; (iv)
the benefit of any statute of limitations
affecting Guarantor's liability hereunder or
the enforcement thereof, and any act which
shall defer or delay the operation of any
statute of limitations applicable to the
Guarantied Obligations shall similarly
operate to defer or delay the operation of
such statute of limitations applicable to
Guarantor's liability hereunder.
f. Until such time as all of the Guarantied
Obligations have been fully, finally, and
indefeasibly paid in full in cash: (i)
Guarantor hereby waives and postpones any
right of subrogation Guarantor has or may
have as against Debtor with respect to the
Guarantied Obligations; (ii) in addition,
Guarantor hereby waives and postpones any
right to proceed against Debtor or any other
Person, now or hereafter, for contribution,
indemnity, reimbursement, or any other
suretyship rights and claims (irrespective of
whether direct or indirect, liquidated or
contingent), with respect to the Guarantied
Obligations; and (iii) in addition, Guarantor
also hereby waives and postpones any right to
proceed or to seek recourse against or with
respect to any property or asset of Debtor.
g. If any of the Guarantied Obligations at any
time are secured by a mortgage or deed of
trust upon real property, Guarantied Party on
behalf of the Lender Group may elect, in its
sole discretion, upon a default with respect
to the Guarantied Obligations, to foreclose
such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law,
before or after enforcing this Guaranty,
without diminishing or affecting the
liability of Guarantor
5.
hereunder. Guarantor understands that (a) by
virtue of the operation of California's
antideficiency law applicable to nonjudicial
foreclosures, an election by the Lender Group
or Guarantied Party on behalf thereof
nonjudicially to foreclose such a mortgage or
deed of trust probably would have the effect
of impairing or destroying rights of
subrogation, reimbursement, contribution, or
indemnity of Guarantor against Debtor or
other guarantors or sureties, and (b) absent
the waiver given by Guarantor herein, such an
election would estop the Lender Group or
Guarantied Party on behalf thereof from
enforcing this Guaranty against Guarantor.
Understanding the foregoing, and
understanding that Guarantor is hereby
relinquishing a defense to the enforceability
of this Guaranty, Guarantor hereby waives any
right to assert against the Lender Group or
Guarantied Party any defense to the
enforcement of this Guaranty, whether
denominated "estoppel" or otherwise, based on
or arising from an election by the Lender
Group or Guarantied Party on behalf thereof
nonjudicially to foreclose any such mortgage
or deed of trust. Guarantor understands that
the effect of the foregoing waiver may be
that Guarantor may have liability hereunder
for amounts with respect to which Guarantor
may be left without rights of subrogation,
reimbursement, contribution, or indemnity
against Debtor or other guarantors or
sureties. Guarantor also agrees that the
"fair market value" provisions of Section
580a of the California Code of Civil
Procedure shall have no applicability with
respect to the determination of Guarantor's
liability under this Guaranty.
h. WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, GUARANTOR HEREBY WAIVES, TO THE
MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY
LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING
DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE
OF CALIFORNIA CIVIL CODE (S)(S) 2799, 2808,
2809, 2810, 2815, 2819, 2820, 2821, 2822,
2838, 2839, 2845, 2847, 2848, 2849, AND 2850,
CALIFORNIA CODE OF CIVIL PROCEDURE (S)(S)
580a, 580b, 580c, 580d, AND 726, AND CHAPTER
2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE.
i. WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF
REMEDIES BY THE GUARANTIED PARTY, EVEN THOUGH
THAT ELECTION OF REMEDIES, SUCH AS A
NONJUDICIAL
6.
FORECLOSURE WITH RESPECT TO SECURITY FOR A
GUARANTIED OBLIGATION, HAS DESTROYED THE
GUARANTOR'S RIGHTS OF SUBROGATION AND
REIMBURSEMENT AGAINST THE DEBTOR BY THE
OPERATION OF SECTION 580d OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE OR OTHERWISE.
(g) Releases. Guarantor consents and agrees that, without notice to
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or by Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, the Lender Group or Guarantied Party on behalf thereof may, by action
or inaction, compromise or settle, extend the period of duration or the time for
the payment, or discharge the performance of, or may refuse to, or otherwise not
enforce, or may, by action or inaction, release all or any one or more parties
to, any one or more of the terms and provisions of the Credit Agreement or any
of the other Loan Documents or may grant other indulgences to Debtor in respect
thereof, or may amend or modify in any manner and at any time (or from time to
time) any one or more of the Credit Agreement or any of the other Loan
Documents, or may, by action or inaction, release or substitute any other
guarantor, if any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guarantied
Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
(h) No Election. Guarantied Party shall have the right to seek
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recourse against Guarantor to the fullest extent provided for herein and no
election by the Lender Group or Guarantied Party on behalf thereof to proceed in
one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Guarantied Party's right on behalf of the Lender
Group to proceed in any other form of action or proceeding or against other
parties unless Guarantied Party has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by the Lender Group or Guarantied Party on behalf thereof under any
document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent
that the Lender Group finally and unconditionally shall have realized
indefeasible payment by such action or proceeding.
(i) Indefeasible Payment. The Guarantied Obligations shall not be
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considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to the Lender Group are no longer subject to any right on the part of
any person whomsoever, including Debtor, Debtor as a debtor in possession, or
any trustee (whether appointed under the Bankruptcy Code or otherwise) of
Debtor's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to the Lender Group is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and Guarantor
shall be liable for the full amount the Lender Group is required to repay plus
any and all costs and expenses (including attorneys fees) paid by the Lender
Group in connection therewith.
7.
(j) Financial Condition of Debtor. Guarantor represents and warrants
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to Guarantied Party that it is currently informed of the financial condition of
Debtor and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Guarantied Obligations. Guarantor
further represents and warrants to Guarantied Party that it has read and
understands the terms and conditions of the Credit Agreement and the other Loan
Documents. Guarantor hereby covenants that it will continue to keep itself
informed of Debtor's financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guarantied Obligations.
(k) Subordination. Guarantor hereby agrees that any and all present
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and future indebtedness of Debtor owing to Guarantor is postponed in favor of
and subordinated to payment, in full, in cash, of the Guarantied Obligations. In
this regard, no payment of any kind whatsoever shall be made with respect to
such indebtedness until the Guarantied Obligations have been indefeasibly paid
in full.
(l) Payments; Application. All payments to be made hereunder by
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Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including attorneys fees) incurred by Guarantied Party on
behalf of the Lender Group in enforcing this Guaranty or in collecting the
Guarantied Obligations; second, to all accrued and unpaid interest, premium, if
any, and fees owing to the Lender Group constituting Guarantied Obligations; and
third, to the balance of the Guarantied Obligations.
(m) Attorneys Fees and Costs. Guarantor agrees to pay, on demand,
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all reasonable attorneys fees and all other reasonable costs and expenses which
may be incurred by Guarantied Party on behalf of the Lender Group in the
enforcement of this Guaranty or in any way arising out of, or consequential to
the protection, assertion, or enforcement of the Guarantied Obligations (or any
security therefor), irrespective of whether suit is brought.
(n) Notices. Unless otherwise specifically provided in this
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Guaranty, any notice or other communication relating to this Guaranty or any
other agreement entered into in connection therewith shall be in writing and
shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by prepaid telex, TWX, telefacsimile, or
telegram (with messenger delivery specified) to Guarantor or to Guarantied
Party, as the case may be, at its addresses set forth below:
If to Guarantor: Systems Integration Software
c/o SM&A Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
8.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President/
Chief Financial Officer
Telefacsimilie: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telefacsimilie: (▇▇▇) ▇▇▇-▇▇▇▇
If to Guarantied Party: Mellon Bank, ▇.▇.
▇▇▇▇▇▇ Bank Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telefacsimilie: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telefacsimilie: (▇▇▇) ▇▇▇-▇▇▇▇
9.
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other. All notices or demands sent in accordance with this Section 14, other
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than notices by Guarantied Party in connection with Sections 9504 or 9505 of the
Code, shall be deemed received on the earlier of the date of actual receipt or
three (3) calendar days after the deposit thereof in the mail. Guarantor
acknowledges and agrees that notices sent by Guarantied Party in connection with
Sections 9504 or 9505 of the Code shall be deemed sent when deposited in the
mail or transmitted by telefacsimile or other similar method set forth above.
(o) Cumulative Remedies. No remedy under this Guaranty, under the
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Credit Agreement, or any other Loan Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Guaranty, under the Credit
Agreement, or any other Loan Document, and those provided by law. No delay or
omission by Guarantied Party to exercise any right under this Guaranty shall
impair any such right nor be construed to be a waiver thereof. No failure on the
part of Guarantied Party to exercise, and no delay in exercising, any right
under this Guaranty shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Guaranty preclude any other or further
exercise thereof or the exercise of any other right.
(p) Severability of Provisions. Any provision of this Guaranty which
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is prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
(q) Entire Agreement; Amendments. This Guaranty constitutes the
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entire agreement between Guarantor and Guarantied Party pertaining to the
subject matter contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by both Guarantor and
Guarantied Party. Any such alteration, amendment, modification, waiver, or
consent shall be effective only to the extent specified therein and for the
specific purpose for which given. No course of dealing and no delay or waiver of
any right or default under this Guaranty shall be deemed a waiver of any other,
similar or dissimilar, right or default or otherwise prejudice the rights and
remedies hereunder.
(r) Successors and Assigns. This Guaranty shall be binding upon
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Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Lender Group and Guarantied Party; provided,
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however, Guarantor shall not assign this Guaranty or delegate any of its duties
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hereunder without Guarantied Party's prior written consent and any unconsented
to assignment shall be absolutely void. In the event of any assignment or other
transfer of rights by the Lender Group or Guarantied Party, the rights and
benefits herein conferred upon Guarantied Party for the benefit of the Lender
Group shall automatically extend to and be vested in such assignee or other
transferee.
(s) No Third Party Beneficiary. This Guaranty is solely for the
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benefit of the Lender Group and Guarantied Party on behalf thereof and their
respective successors and assigns and may not be relied on by any other Person.
10.
(t) CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR AT
THE SOLE OPTION OF GUARANTIED PARTY, IN ANY OTHER COURT IN WHICH GUARANTIED
PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF GUARANTOR AND GUARANTIED
PARTY WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.
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GUARANTOR AND GUARANTIED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. GUARANTOR AND GUARANTIED PARTY REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A
COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
[Signature page follows.]
11.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
SYSTEMS INTEGRATION SOFTWARE,
a California corporation
By ________________________________
Title: ____________________________
12.