GENERAL CONTINUING GUARANTY
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THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of
September 11, 1998, is executed and delivered by Space Applications Corporation,
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:
1. DEFINITIONS AND CONSTRUCTION.
(a) DEFINITIONS. Capitalized terms used herein and not
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 Credit and
Security Agreement, dated as of even date herewith, among Debtor and the Lender
Group
"DEBTOR" shall mean SM & A Corporation.
"GUARANTIED OBLIGATIONS" shall mean: (a) the due and
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
preamble to this Guaranty.
"GUARANTOR" shall have the meaning set forth in the
preamble to this Guaranty.
"GUARANTY" shall have the meaning set forth in the
preamble to this Guaranty.
"INDEBTEDNESS" shall mean any and all obligations,
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,
each of the Lenders and Mellon in its capacity as Agent for the Lenders.
"LENDERS" shall mean, individually and collectively, each
of the financial institutions (including Mellon) listed on the signature pages
of the Credit Agreement (together with their respective successors and assigns)
(b) CONSTRUCTION. Unless the context of this Guaranty 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. GUARANTIED OBLIGATIONS. Guarantor hereby irrevocably and
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
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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.
3. CONTINUING GUARANTY. This Guaranty includes Guarantied
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.
4. PERFORMANCE UNDER THIS GUARANTY. In the event that Debtor
fails 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 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.
5. PRIMARY OBLIGATIONS. This Guaranty is a primary and
original 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 against
Guarantor, whether such action is brought against Debtor or any other guarantor
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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.
6. WAIVERS.
(a) 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.
(b) 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)
of Debtor or by reason of the cessation from any cause whatsoever of the
liability of Debtor in respect thereof.
(c) 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
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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 ▇▇.▇▇. 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.
(d) 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.
(e) 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 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.
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(f) 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
▇▇.▇▇. 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
2847, 2848, 2849, AND 2850, CALIFORNIA CODE OF CIVIL PROCEDURE ▇▇.▇▇. 580a,
580b, 580c, 580d, AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL
CODE.
(g) 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 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.
7. RELEASES. Guarantor consents and agrees that, without notice
to 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.
8. NO ELECTION. Guarantied Party shall have the right to seek
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.
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9. INDEFEASIBLE PAYMENT. The Guarantied Obligations shall not
be 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.
10. FINANCIAL CONDITION OF DEBTOR. Guarantor represents and
warrants 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.
11. SUBORDINATION. Guarantor hereby agrees that any and all
present 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.
12. PAYMENTS; APPLICATION. All payments to be made hereunder by
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.
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13. ATTORNEYS FEES AND COSTS. Guarantor agrees to pay, on demand,
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.
14. NOTICES. Unless otherwise specifically provided in this
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: Space Application Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Guarantied Party: Mellon Bank, ▇.▇.
▇▇▇▇▇▇ Bank Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
15. CUMULATIVE REMEDIES. No remedy under this Guaranty, under the
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.
16. SEVERABILITY OF PROVISIONS. Any provision of this Guaranty
which is prohibited or unenforceable under applicable law shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. ENTIRE AGREEMENT; AMENDMENTS. This Guaranty constitutes
the 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.
18. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding
upon 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,
however, Guarantor shall not assign this Guaranty or delegate any of its duties
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.
19. NO THIRD PARTY BENEFICIARY. This Guaranty is solely for
the 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.
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20. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
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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.
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.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
SPACE APPLICATIONS CORPORATION,
a California corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: V.P. and Assistant Secretary
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