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GUARANTY
CoreStates
This Guaranty is made and entered into by the undersigned, and by each of them
if more than one (the "Guarantor"), for the benefit of CoreStates Bank, N.A.*, a
national banking association (the "Bank").
1. Obligor. The "Obligor" means the following person or entity, and if more
than one, any or all of the following persons or entities:
ASA International Ltd.
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2. Obligations. The "Obligations" means all existing and hereafter incurred or
arising indebtedness, obligations and liabilities of the Obligor to the Bank,
whether absolute or contingent, direct or indirect and out of whatever
transactions arising, and includes without limitation, all matured and unmatured
indebtedness, obligations and liabilities of the Obligor under or in connection
with existing and future loans and advances evidenced by promissory notes or
otherwise, letters of credit, acceptances, all other extensions of credit,
repurchase agreements, security agreements, mortgages, overdrafts, foreign
exchange contracts and all other contracts for payment or performance,
indemnities, and all indebtedness, obligations and liabilities under any
guaranty or surety agreement, or as co-maker or co-obligor with any person for
any of the foregoing, including without limitation all interest, expenses, costs
(including collection costs) and fees (including reasonable attorney's fees and
prepayment fees) incurred, arising or accruing (whether prior or subsequent to
the filing of any bankruptcy petition by or against any Obligor) under or in
connection with any of the foregoing. If the term "Obligor" includes more than
one person or entity, the Obligations shall include all Obligations of any one
or more of such persons or entities, whether such Obligations are individual,
joint, several or joint and several.
3. Unconditional Guaranty. In consideration of any existing Obligations and any
Obligations which may hereafter arise or be incurred, each Guarantor, intending
to be legally bound, absolutely and unconditionally (and jointly and severally
if more than one) guaranties to Bank the payment, performance and satisfaction
when due (whether by stated maturity, demand, acceleration or otherwise) of all
Obligations. The obligations of the Guarantor hereunder shall continue in full
force and effect irrespective of the validity, legality or enforceability of any
agreements, notes, or documents pursuant to which any of the Obligations arise,
or the existence, value or condition of any collateral for any of the
Obligations, or of any other guaranty of the Obligations, or any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
4. Cost of Enforcement. Each Guarantor agrees (jointly and severally if more
than one) to pay Bank all costs and expenses (including reasonable attorney's
fees) at any time incurred by Bank in the enforcement of the Obligations or in
the enforcement of this Guaranty against any Guarantor.
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5. Payment by Guarantor. Payment by each Guarantor is due upon demand by Bank
and is payable in immediately available funds in lawful money of the United
States of America.
6. Continuing Guaranty. This Guaranty shall continue in full force and effect
with respect to each Guarantor and may not be revoked until all existing
Obligations and all Obligations hereafter incurred or arising have been paid,
performed and satisfied in full. Notwithstanding the foregoing, any Guarantor
may, by written notice to Bank, terminate its liability hereunder with respect
to Obligations which are not Pre-Termination Obligations as hereinafter defined.
Such notice shall be ineffective unless sent via certified mail to: Special
Notices Section, Loan Accounting Department, CoreStates Bank, N.A., 0000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxx, XX:0-0-00-00, Xxxxxxxxxxxx, XX 00000.
The burden of establishing (i) that Bank has received any termination notice
hereunder and (ii) the day on which such notice was received shall be on
Guarantor. In the event that Bank receives an effective termination notice from
Guarantor in accordance with the provisions of this paragraph, such termination
shall not affect Guarantor's liability (a) for Obligations incurred or arising
on or prior to the tenth day following receipt by Bank of such termination
notice, or any earlier day, on which Bank determines in good faith that the
appropriate Bank officers have actual knowledge of Bank's receipt of such notice
(the "Termination Effective Date"), (b) for Obligations which are renewals,
modifications, amendments, extensions, substitutions, replacements or rollovers
of, or which consist of accrued interest on, Obligations incurred or arising on
or prior to the Termination Effective Date, or (c) for Obligations incurred or
arising pursuant to a commitment existing on the Termination Effective Dare
under which Bank was obligated to extend credit or make payments to Obligor or
for Obligor's account, all Obligations referred to in this sentence being
hereinafter collectively called "Pre-Termination Obligations." It is understood
that for purposes of this Guaranty and regardless of any conflicting agreement
between Bank and any Obligor, all payments on and other reductions of the
Obligations subsequent to the Termination Effective Date (other than payments
made by Guarantor in respect of the Guaranty itself) shall, unless Bank elects
otherwise in writing, be applied first to Obligations other than Pre-Termination
Obligations, and then to Pre-Termination Obligations. It is further understood
that the provisions of the preceding sentence shall be applicable regardless of
the amount of any new Obligations incurred or arising subsequent to the
Termination Effective Date.
7. Waivers and Consents By Guarantors. Each Guarantor unconditionally consents
to, and waives as a defense to liability hereunder, each of the following: (a)
any waiver, inaction, delay or lack of diligence by Bank in enforcing its rights
against any Obligor or in any property, or the unenforceability of any such
rights, including any failure to perfect, protect or preserve any lien or
security interest which may be intended directly or indirectly to secure any of
the Obligations, and the absence of notice thereof to any Guarantor, (b) the
absence of any notice of the incurrence or existence of any Obligation and of
any default thereon, (c) any action, and the absence of notice thereof to any
Guarantor, taken by Bank or any Obligor with respect to any of the Obligations,
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including any release, subordination or substitution of any collateral or
release, termination, compromise, modification or amendment of any instrument
executed by or applicable to any Obligor or of any claim, right or remedy
against any Obligor or any property, (d) any impairment of Guarantor's right to
reimbursement by way of subrogation, indemnification or contribution, (e) any
other action taken or omitted by Bank in good faith with respect to the
Obligations, (f) the absence or inadequacy of any formalities of every kind in
connection with enforcement of the Obligations, including presentment, demand,
notice and protest, and (g) the waiver of any rights of Bank under or any action
taken or omitted by Bank with respect to any other guaranty of the Obligations.
8. Other Agreements By Guarantor. Each Guarantor agrees that there shall be no
requirement that Bank document its acceptance of this Guaranty, evidence its
reliance thereon, or that Bank take any action against any person or any
property prior to taking action against any Guarantor. Each Guarantor further
agrees that Bank's rights and remedies hereunder shall not be impaired or
subject to any stay, suspension or other delay as a result of Obligor's
insolvency or as a result of any proceeding applicable to Obligor or Obligor's
property under any bankruptcy or insolvency law. Each Guarantor also agrees that
payments and other reductions on the Obligations may be applied to such of the
Obligations and in such order as Bank may elect.
9. Subrogation and Similar Rights. No Guarantor will exercise any rights with
respect to Bank or any Obligor related to or acquired in connection with or as a
result of its making of this Guaranty which it may acquire by way of
subrogation, indemnification or contribution, by reason of payment made by it
hereunder or otherwise, until after the date on which all of the Obligations
shall have been satisfied in full. Until such time, any such rights against the
Obligor shall be fully subordinate in lien and payment to any claim in
connection with the Obligations which Bank now or hereafter has against the
Obligor. If any amount shall be paid to any Guarantor on account of such
subrogation, indemnification, or contribution at any time when all of the
Obligations and all other expenses guaranteed pursuant hereto shall not have
been paid in full, such amount shall be held in trust for the benefit of Bank,
shall be segregated from the other funds of Guarantor and shall forthwith be
paid over to Bank to be applied in whole or in part by Bank against the
Obligations, whether matured or unmatured, in such order as the Bank shall
determine in it sole discretion. If Guarantor shall make payment to the Bank of
all or any portion of the Obligations and all of the Obligations shall be paid
in full, Guarantor's right of subrogation shall be without recourse to and
without any implied warranties by Bank and shall remain fully subject and
subordinate to Bank's right to collect any other amounts which may thereafter
become due to the Bank by the Obligor in connection with the Obligations.
10. Reinstatement of Liability. If any claim is made upon the Bank for repayment
or recovery of any amount or amounts received by Bank in payment or on account
of any Obligations and Bank repays all or part of said amount by reason of (a)
any judgment, decree or order of any court or administrative body having
jurisdiction over the Bank or any of its property, or (b) any settlement or
compromise in good faith with any
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such claimant (including Obligor), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
upon the Guarantor, notwithstanding any termination hereof or the cancellation
of any note or other instrument evidencing any Obligation, and each Guarantor
shall remain liable to the Bank hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by Bank.
11. Security Interest. Each Guarantor hereby assigns to the Bank and grants to
the Bank a security interest in any balance or assets in any deposit or other
account of such Guarantor in or with the Bank whenever and so long as any of the
Obligations shall be outstanding and unpaid and agrees that the security
interest hereby granted shall be independent of the right of setoff.
12. Financial Information on Guarantor. Each Guarantor hereby agrees to provide
the Bank with such information on the business affairs and financial condition
of such Guarantor as the Bank from time to time may reasonably request and to
notify the Bank of any change in the address of such Guarantor. In the event
that such Guarantor fails to comply with a request for information as herein
agreed, within ten (10) days after receipt of the request, such Guarantor upon
demand by the Bank agrees to purchase from the Bank without representation,
warranty or recourse the Obligations and to pay therefor the unpaid principal
amount of all such Obligations, including interest thereon to the date of
purchase.
13. Effect of Other Agreements. The provisions of the Guaranty are cumulative
and concurrent with Bank's rights and remedies against Guarantor under any
existing or future agreement pertaining or evidencing any of the Obligations. No
such additional agreement shall be deemed a modification or waiver hereof unless
expressly so agreed by Bank in writing. If Bank holds any other guaranty or
surety agreement applicable to any of the Obligations, the liability of each
Guarantor hereunder shall be joint and several with each party obligated on such
other guaranty or surety agreement, unless otherwise agreed by Bank in writing.
(See Addendum)
14. Guarantor's Address. Guarantor warrants and represents that the address set
forth below is Guarantor's correct mailing address and agrees immediately to
notify Bank in the event of any change therein.
15. Miscellaneous. (a) No amendment of any provision of the Guaranty shall be
effective unless it is in writing and signed by each Guarantor and Bank, and no
waiver of any provisions of this Guaranty, and no waiver or consent to any
departure by the Guarantor therefrom, shall be effective unless it is in writing
and signed by Bank, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. (b) Any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provisions in any
other jurisdiction. (c) The obligations of each Guarantor hereunder shall not be
subject to any counterclaim, setoff,
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deduction or defense based upon any related or unrelated claim which such
Guarantor may now or hereafter have against Bank or any Obligor, except payment
of the Obligations, and shall not be affected by any change in Obligor's legal
status or ownership or by any change in corporate, partnership or other
organizational structure applicable to Obligor. (d) This Guaranty shall (i) be
binding on each Guarantor and its personal representatives, estate, heirs,
successors and assigns, and (ii) inure, together with all rights and remedies of
Bank hereunder, to the benefit of the Bank and its successors, transferees and
assigns. Notwithstanding the foregoing clause (i), none of the rights or
obligations of any Guarantor hereunder may be assigned or otherwise transferred
without the prior written consent of the Bank. (e) This Guaranty shall be
governed by and construed in accordance with the internal laws, and not the law
of conflicts, of the Commonwealth of Pennsylvania.
16. CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS GUARANTY OR
THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN ANY COUNTY IN THE COMMONWEALTH OF MASSACHUSETTS AND AGREES NOT TO RAISE ANY
OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF
ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE
OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY
THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY.
17. WAIVER OF JURY TRIAL. EACH UNDERSIGNED PARTY HEREBY WAIVES, AND BANK BY ITS
ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS GUARANTY OR
THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
BANK TO ENTER INTO, ACCEPT OR RELY UPON THIS GUARANTY.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
10TH day of DECEMBER, 1996.
ASA International Ventures, Inc.
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NAME OF CORPORATION OR PARTNERSHIP GUARANTOR
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ADDRESS
By: /s/Xxxxxxxx X. XxXxxxxx By:
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INDIVIDUALS OR PROPRIETORS SIGN BELOW
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WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
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WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
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* CoreStates Bank, N.A. also conducts business as Philadelphia National Bank,
as CoreStates First Pennsylvania Bank, and as CoreStates Xxxxxxxx Bank.
9009-C 10/93
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ADDENDUM TO GUARANTY
13. Guarantor also warrants and represents that the execution, delivery and
performance of the Guarantor of this Guaranty has been duly authorized by
all necessary corporate action, is in furtherance of the corporate purposes
of the Guarantor, and will not violate any provision of the certificate of
Incorporation or by-laws of the Guarantor or result in the breach of or
constitute a default or, other than the Agreement by and between the
Guarantor and Economic Stabilization Trust attached hereto, require any
consent under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of the Guarantor pursuant to any indenture or
other agreement or instrument to which the Guarantor is a party or by which
it may be bound and that this Guaranty is the legal, valid and binding
obligation of the Guarantor, enforceable in accordance with its terms.
