EXHIBIT 10.24
GUARANTY AND SURETYSHIP AGREEMENT
---------------------------------
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of this 28th day of September, 2001, by TELESERVICES MANAGEMENT
COMPANY (the "Guarantor"), with an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ Delaware, in consideration of the extension of credit by PNC BANK,
NATIONAL ASSOCIATION (the "Bank"), with an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, to RMH TELESERVICES, INC. (the "Borrower"), and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
1. Guaranty of Obligations. The Guarantor hereby guarantees, and becomes
-----------------------
surety for, the prompt payment and performance of all loans, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower to the Bank
or to any other direct or indirect subsidiary of PNC Bank Corp., of any kind or
nature, present or future (including any interest accruing thereon after
maturity, or after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether or not evidenced by any note, guaranty or other
instrument, whether arising under any agreement, instrument or document, whether
or not for the payment of money, whether arising by reason of an extension of
credit, opening of a letter of credit, loan, equipment lease or guarantee, under
any interest or currency swap, future, option or other interest rate protection
or similar agreement, or in any other manner, whether arising out of overdrafts
on deposit or other accounts or electronic funds transfers (whether through
automated clearing houses or otherwise) or out of the Bank's non-receipt of or
inability to collect funds or otherwise not being made whole in connection with
depository transfer check or other similar arrangements, whether direct or
indirect (including those acquired by assignment or participation), absolute or
contingent, joint or several, due or to become due, now existing or hereafter
arising, including without limitation, all debts, liabilities, and obligations
arising under that certain letter agreement dated March 21, 1997, as amended
between Borrower and Bank (collectively, "Credit Agreement") and all other
instruments, documents and agreements related thereto (collectively, with the
Credit Agreement, "Loan Documents") and any amendments, extensions, renewals or
increases and all costs and expenses of the Bank incurred in documentation,
negotiation, modification, enforcement, collection or otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses
(hereinafter referred to collectively as the "Obligations"). If the Borrower
defaults under any such Obligations, the Guarantor will pay the amount due to
the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of
---------------------------
collection and the Bank shall not be required, as a condition of the Guarantor's
liability, to make any demand upon or to pursue any of its rights against the
Borrower, or to pursue any rights which may be available to it with respect to
any other person who may be liable for the payment of the Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty
and will remain in full force and effect until all of the Obligations have been
indefeasibly paid in full, and the Bank has terminated this Guaranty. This
Guaranty will remain in full force and effect even if there is no principal
balance outstanding under the Obligations at a particular time or from time to
time. This Guaranty will not be affected by any surrender, exchange, acceptance,
compromise or release
by the Bank of any other party, or any other guaranty or any security held by it
for any of the Obligations, by any failure of the Bank to take any steps to
perfect or maintain its lien or security interest in or to preserve its rights
to any security or other collateral for any of the Obligations or any guaranty,
or by any irregularity, unenforceability or invalidity of any of the Obligations
or any part thereof or any security or other guaranty thereof. The Guarantor's
obligations hereunder shall not be affected, modified or impaired by any
counterclaim, set-off, deduction or defense based upon any claim the Guarantor
may have against the Borrower or the Bank, except payment or performance of the
Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit
to the Borrower from time to time, notice of default, diligence, presentment,
notice of dishonor, protest, demand for payment, and any defense based upon the
Bank's failure to comply with the notice requirements of the applicable version
of Uniform Commercial Code are hereby waived. The Guarantor waives all defenses
based on suretyship or impairment of collateral.
The Bank at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or other
terms relating to, any of the Obligations; (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to any of the Obligations, any
other guaranties, or any security for any Obligations or guaranties; (c) apply
any and all payments by whomever paid or however realized including any proceeds
of any collateral, to any Obligations of the Borrower in such order, manner and
amount as the Bank may determine in its sole discretion; (d) settle, compromise
or deal with any other person, including the Borrower or the Guarantor, with
respect to any Obligations in such manner as the Bank deems appropriate in its
sole discretion; (e) substitute, exchange or release any security or guaranty;
or (f) take such actions and exercise such remedies hereunder as provided
herein.
3. Repayments or Recovery from the Bank. If any demand is made at any
------------------------------------
time upon the Bank for the repayment or recovery of any amount received by it in
payment or on account of any of the Obligations and if the Bank repays all or
any part of such amount by reason of any judgment, decree or order of any court
or administrative body or by reason of any settlement or compromise of any such
demand, the Guarantor will be and remain liable hereunder for the amount so
repaid or recovered to the same extent as if such amount had never been received
originally by the Bank. The provisions of this section will be and remain
effective notwithstanding any contrary action which may have been taken by the
Guarantor in reliance upon such payment, and any such contrary action so taken
will be without prejudice to the Bank's rights hereunder and will be deemed to
have been conditioned upon such payment having become final and irrevocable.
4. Financial Statements. Unless compliance is waived in writing by the
--------------------
Bank or until all of the Obligations have been paid in full, the Guarantor will
promptly submit within ten (10) days of the Bank's request, to the Bank such
information relating to the Guarantor's affairs (including but not limited to
annual financial statements and tax returns for the Guarantor) or any security
for the Guaranty as the Bank may reasonably request.
5. Enforceability of Obligations. No modification, limitation or
-----------------------------
discharge of the Obligations arising out of or by virtue of any bankruptcy,
reorganization or similar proceeding for relief of debtors under federal or
state law will affect, modify, limit or discharge the Guarantor's
2
liability in any manner whatsoever and this Guaranty will remain and continue in
full force and effect and will be enforceable against the Guarantor to the same
extent and with the same force and effect as if any such proceeding had not been
instituted. The Guarantor waives all rights and benefits which might accrue to
it by reason of any such proceeding and will be liable to the full extent
hereunder, irrespective of any modification, limitation or discharge of the
liability of the Borrower that may result from any such proceeding.
6. Events of Default. The occurrence of any of the following shall be an
-----------------
"Event of Default": (i) any Event of Default (as defined in any of the Loan
Documents); (ii) the Guarantor's failure to perform any of its obligations
hereunder within the required time periods; (iii) the falsity, inaccuracy or
material breach by the Guarantor of any written warranty, representation or
statement made or furnished to the Bank by or on behalf of the Guarantor; or
(iv) the termination or attempted termination of this Guaranty. Upon the
occurrence of any Event of Default, (a) the Guarantor shall pay to the Bank the
amount of the Obligations; or (b) on demand of the Bank, the Guarantor shall
immediately deposit with the Bank, in U.S. dollars, all amounts due or to become
due under the Obligations, and the Bank may at any time use such funds to repay
the Obligations; or (c) the Bank in its discretion may exercise with respect to
any collateral any one or more of the rights and remedies provided a secured
party under the applicable version of the Uniform Commercial Code; or (d) the
Bank in its discretion may exercise from time to time any other rights and
remedies available to it at law, in equity or otherwise.
7. Right of Setoff. In addition to all liens upon and rights of setoff
---------------
against the Guarantor's money, securities or other property given to the Bank by
law, the Bank shall have, with respect to the Guarantor's obligations to the
Bank under this Guaranty and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against, and
the Guarantor hereby assigns, conveys, delivers, pledges and transfers to the
Bank all of the Guarantor's right, title and interest in and to, all of the
Guarantor's deposits, moneys, securities and other property now or hereafter in
the possession of or on deposit with, or in transit to, the Bank or any other
direct or indirect subsidiary of PNC Bank Corp., whether held in a general or
special account or deposit, whether held jointly with someone else, or whether
held for safekeeping or otherwise, excluding, however, all ▇▇▇, ▇▇▇▇▇, and trust
accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to the Guarantor. Every such right of setoff
shall be deemed to have been exercised immediately upon the occurrence of an
Event of Default hereunder without any action of the Bank, although the Bank may
enter such setoff on its books and records at a later time.
8. Collateral. This Guaranty is secured by the property described in any
----------
collateral security documents which the Guarantor executes and delivers to the
Bank and by such other collateral as previously may have been or may in the
future be granted to the Bank to secure any obligations of the Guarantor to the
Bank.
9. Costs. To the extent that the Bank incurs any costs or expenses in
-----
protecting or enforcing its rights under the Obligations or this Guaranty,
including reasonable attorneys' fees and the costs and expenses of litigation,
such costs and expenses will be due on demand, will be included in the
Obligations and will bear interest from the incurring or payment thereof at the
Default Rate (as defined in any of the Obligations).
3
10. Postponement of Subrogation. Until the Obligations are indefeasibly
---------------------------
paid in full, the Guarantor postpones and subordinates in favor of the Bank any
and all rights which the Guarantor may have to (a) assert any claim against the
Borrower based on subrogation rights with respect to payments made hereunder,
and (b) any realization on any property of the Borrower, including participation
in any marshalling of the Borrower's assets.
11. Power to Confess Judgment. The Guarantor hereby empowers any attorney
-------------------------
of any court of record, after the occurrence of any Event of Default hereunder,
to appear for the Guarantor and, with or without complaint filed, confess
judgment, or a series of judgments, against the Guarantor in favor of the Bank
for the amount of the Obligations and an attorney's commission of the greater of
10% of such principal and interest or $1,000 added as a reasonable attorney's
fee, and for doing so, this Guaranty or a copy verified by affidavit shall be a
sufficient warrant. The Guarantor hereby forever waives and releases all errors
in said proceedings and all rights of appeal and all relief from any and all
appraisement, stay or exemption laws of any state now in force or hereafter
enacted.
No single exercise of the foregoing power to confess judgment, or a
series of judgments, shall be deemed to exhaust the power, whether or not any
such exercise shall be held by any court to be invalid, voidable, or void, but
the power shall continue undiminished and it may be exercised from time to time
as often as the Bank shall elect until such time as the Bank shall have received
payment in full of the Obligations and costs. Notwithstanding the attorney's
commission provided for in the preceding paragraph (which is included in the
warrant for purposes of establishing a sum certain), the amount of attorneys'
fees that the Bank may recover from the Guarantor shall not exceed the actual
attorneys' fees incurred by the Bank.
12. Notices. All notices, demands, requests, consents, approvals and
-------
other communications required or permitted hereunder must be in writing and will
be effective upon receipt. Such notices and other communications may be hand-
delivered, sent by facsimile transmission with confirmation of delivery and a
copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Bank and the Guarantor set forth above
or to such other address as one may give to the other in writing for such
purpose.
13. Preservation of Rights. No delay or omission on the Bank's part to
----------------------
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the Bank's
action or inaction impair any such right or power. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity.
The Bank may proceed in any order against the Borrower, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
14. Illegality. In case any one or more of the provisions contained in
----------
this Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
15. Changes in Writing. No modification, amendment or waiver of any
------------------
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom will be effective unless made in a writing signed by the Bank, and
then such waiver or consent shall be effective only in the
4
specific instance and for the purpose for which given. No notice to or demand on
the Guarantor in any case will entitle the Guarantor to any other or further
notice or demand in the same, similar or other circumstance.
16. Entire Agreement. This Guaranty (including the documents and
----------------
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the Guarantor and the Bank with respect to the subject matter hereof; provided,
however, that this Guaranty is in addition to, and not in substitution for, any
other guarantees from the Guarantor to the Bank.
17. Successors and Assigns. This Guaranty will be binding upon and inure
----------------------
to the benefit of the Guarantor and the Bank and their respective heirs,
executors, administrators, successors and assigns; provided however, that the
-------- -------
Guarantor may not assign this Guaranty in whole or in part without the Bank's
prior written consent and the Bank at any time may assign this Guaranty in whole
or in part.
18. Interpretation. In this Guaranty, unless the Bank and the Guarantor
--------------
otherwise agree in writing, the singular includes the plural and the plural the
singular; references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute referred to; the
word "or" shall be deemed to include "and/or", the words "including", "includes"
and "include" shall be deemed to be followed by the words "without limitation";
and references to sections or exhibits are to those of this Guaranty unless
otherwise indicated. Section headings in this Guaranty are included for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose. If this Guaranty is executed by more than one party as
Guarantor, the obligations of such persons or entities will be joint and
several.
19. Indemnity. The Guarantor agrees to indemnify each of the Bank, its
---------
directors, officers and employees and each legal entity, if any, who controls
the Bank (the "Indemnified Parties") and to hold each Indemnified Party harmless
from and against any and all claims, damages, losses, liabilities and expenses
(including all fees and charges of internal or external counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party as a result of the execution of or performance under this
Guaranty; provided, however, that the foregoing indemnity agreement shall not
-------- -------
apply to claims, damages, losses, liabilities and expenses solely attributable
to an Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this
Guaranty. The Guarantor may participate at its expense in the defense of any
such claim.
20. Governing Law and Jurisdiction. This Guaranty has been executed in
------------------------------
the State of Delaware and delivered by courier to and accepted by the Bank in
the Commonwealth of Pennsylvania. This Guaranty will be interpreted and the
rights and liabilities of the Bank and the Guarantor determined in accordance
with the laws of the State where the Bank's office indicated above is located,
excluding its conflict of laws rules. The Guarantor hereby irrevocably consents
to the exclusive jurisdiction of any state or federal court in the county or
judicial district where the Bank's office indicated above is located; provided
that nothing contained in this Guaranty will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Guarantor individually, against any security or against any property of the
Guarantor within any other county, state or other
5
foreign or domestic jurisdiction. The Guarantor acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and the
Guarantor. The Guarantor waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this Guaranty.
21. Equal Credit Opportunity Act. If the Guarantor is not an "applicant
----------------------------
for credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974
("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to
provide credit support for the Obligations, and (ii) the Guarantor was not
required to execute this Guaranty in violation of Section 202.7(d) of the ECOA.
22. Waiver of Jury Trial. The Guarantor irrevocably waives any and all
--------------------
right the Guarantor may have to a trial by jury in any action, proceeding or
claim of any nature relating to this Guaranty, any documents executed in
connection with this Guaranty or any transaction contemplated in any of such
documents. The Guarantor acknowledges that the foregoing waiver is knowing and
voluntary.
The Guarantor acknowledges that it has read and understood all the
provisions of this Guaranty, including the confession of judgment and waiver of
jury trial, and has been advised by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date
first written above, with the intent to be legally bound hereby.
[SIGNATURES ON FOLLOWING PAGE]
6
TELESERVICES MANAGEMENT COMPANY
Dated:_______________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Chairman
-------------------------------
7