Contract
Exhibit 10.5
7
BORROWER: GSE
Systems, Inc.
GSE Power Systems,
Inc.
GUARANTOR: MSHI, Inc.
(Ex-Im
Bank-Guaranteed Transaction Specific Revolving Line of Credit)
To: Bank
of America, N.A.
1. The
Guaranty. For valuable consideration, the undersigned
("Guarantor") hereby unconditionally guarantees and promises to pay promptly to
Bank of America, N.A., its subsidiaries and affiliates (collectively, "Bank"),
or order, in lawful money of the United States, any and all Indebtedness of GSE
Systems, Inc. and GSE Power Systems, Inc. (collectively, the "Borrower") to Bank
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter. The liability of Guarantor under this Guaranty is
not limited as to the principal amount of the Indebtedness guaranteed and
includes, without limitation, liability for all interest, fees, indemnities
(including, without limitation, hazardous waste indemnities), and other costs
and expenses relating to or arising out of the Indebtedness and for all Swap
Obligations now or hereafter owing from Borrower to Bank. The
liability of Guarantor is continuing and relates to any Indebtedness, including
that arising under successive transactions which shall either continue the
Indebtedness or from time to time renew it after it has been
satisfied. This Guaranty is cumulative and does not supersede any
other outstanding guaranties, and the liability of Guarantor under this Guaranty
is exclusive of Guarantor's liability under any other guaranties signed by
Guarantor. If multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and several. If
Guarantor is a subsidiary or affiliate of Borrower, Guarantor's liability
hereunder shall not exceed at any one time the largest amount during the period
commencing with Guarantor's execution of this Guaranty and thereafter that would
not render Guarantor's obligations hereunder subject to avoidance under Section
548 of the Bankruptcy Code (Title 11, United States Code) or any comparable
provisions of any applicable state law.
2. Definitions.
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(a) "Bank
Agreements" shall mean all agreements, documents, and instruments
evidencing any of the Indebtedness, including but not limited to all loan
agreements between Borrower and Bank and promissory notes from Borrower in
favor of Bank, and all deeds of trust, mortgages, security agreements, and
other agreements, documents, and instruments executed by Borrower in
connection with the Indebtedness, all as now in effect and as hereafter
amended, restated, renewed, or
superseded.
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(b) "Borrower"
shall mean the individual or the entity named in Paragraph 1 of this
Guaranty and, if more than one, then any one or more of
them.
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(c) "Guarantor"
shall mean the individual or the entity signing this Guaranty and, if more
than one, then any one or more of
them.
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(d) "Indebtedness"
shall mean, with respect to that certain Ex-Im Bank-Guaranteed Transaction
Specific Revolving Line of Credit and related agreements, documents and
instruments entered into between Bank and Borrower as of even date herewith, as
now in effect and as amended, renewed or restated in the future, any and all
debts, liabilities, and obligations of Borrower to Bank, now or hereafter
existing, whether voluntary or involuntary and however arising, whether direct
or indirect or acquired by Bank by assignment, succession, or otherwise, whether
due or not due, absolute or contingent, liquidated or unliquidated, determined
or undetermined, held or to be held by Bank for its own account or as agent for
another or others, whether Borrower may be liable individually or jointly with
others, whether recovery upon such debts, liabilities, and obligations may be or
hereafter become barred by any statute of limitations, and whether such debts,
liabilities, and obligations may be or hereafter become otherwise
unenforceable. Indebtedness includes, without limitation, any and all
Swap Obligations and any and all obligations of Borrower to Bank for reasonable
attorneys' fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of Borrower
to Bank.
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(e) “Swap
Obligations” shall mean all obligations of Borrower arising under any
interest rate, credit, commodity or equity swap, cap, floor, collar,
forward foreign exchange transaction, currency swap, cross currency rate
swap, currency option, securities puts, calls, collars, options or
forwards or any combination of, or option with respect to, these or
similar transactions now or hereafter entered into between Borrower and
Bank.
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3. Obligations
Independent. The obligations hereunder are independent of the
obligations of Borrower or any other guarantor, and a separate action or actions
may be brought and prosecuted against Guarantor whether action is brought
against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing
this Guaranty shall be bound by its terms without regard to execution by anyone
else.
4. Rights of
Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
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(a) renew,
compromise, extend, accelerate, or otherwise change the time for payment,
or otherwise change the terms, of the Indebtedness or any part thereof,
including increase or decrease of the rate of interest thereon, or
otherwise change the terms of any Bank
Agreements;
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(b) receive
and hold security for the payment of this Guaranty or any Indebtedness and
exchange, enforce, waive, release, fail to perfect, sell, or otherwise
dispose of any such security;
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(c) apply
such security and direct the order or manner of sale thereof as Bank in
its discretion may determine;
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(d) release
or substitute any Guarantor or any one or more of any endorsers or other
guarantors of any of the Indebtedness;
and
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(e) permit
the Indebtedness to exceed Guarantor's liability under this Guaranty, and
Guarantor agrees that any amounts received by Bank from any source other
than Guarantor shall be deemed to be applied first to any portion of the
Indebtedness not guaranteed by
Guarantor.
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5. Guaranty to be
Absolute. Guarantor agrees that until the Indebtedness has
been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor's obligations under this Guaranty. Guarantor waives
and surrenders any defense to any liability under this Guaranty based upon any
such action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express
intent of Guarantor that Guarantor’s obligations under this Guaranty are and
shall be absolute and unconditional.
6. Guarantor's Waivers of
Certain Rights and Certain Defenses. Guarantor
waives:
(a) any
right to require Bank to proceed against Borrower, proceed against or exhaust
any security for the Indebtedness, or pursue any other remedy in Bank's power
whatsoever;
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(b) any
defense arising by reason of any disability or other defense of Borrower,
or the cessation from any cause whatsoever of the liability of
Borrower;
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(c) any
defense based on any claim that Guarantor's obligations exceed or are more
burdensome than those of Borrower;
and
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(d) the
benefit of any statute of limitations affecting Guarantor's liability
hereunder.
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No
provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of
Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be in excess
of Guarantor’s liability hereunder, Guarantor waives to the extent permitted by
applicable law any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence or
performance of this Guaranty, and Guarantor waives to the extent permitted by
applicable law any right to enforce any remedy that Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of
Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Bank Agreement (including Guarantor), notices
of acceptance of this Guaranty, notices of the existence, creation, or incurring
of new or additional Indebtedness to which this Guaranty applies or any other
Indebtedness of Borrower to Bank, and notices of any fact that might increase
Guarantor’s risk.
9. Security. To
secure all of Guarantor's obligations hereunder, Guarantor assigns and grants to
Bank a security interest in all moneys, securities, and other property of
Guarantor now or hereafter in the possession of Bank, all deposit accounts of
Guarantor maintained with Bank, and all proceeds thereof. Upon
default or breach of any of Guarantor's obligations to Bank, Bank may apply any
deposit account to reduce the Indebtedness, and may foreclose any collateral as
provided in the Uniform Commercial Code and in any security agreements between
Bank and Guarantor.
10. Subordination. Any
obligations of Borrower to Guarantor, now or hereafter existing, including but
not limited to any obligations to Guarantor as subrogee of Bank or resulting
from Guarantor's performance under this Guaranty, are hereby subordinated to the
Indebtedness. In addition to Guarantor's waiver of any right of
subrogation as set forth in this Guaranty with respect to any obligations of
Borrower to Guarantor as subrogee of Bank, Guarantor agrees that, if Bank so
requests, Guarantor shall not demand, take, or receive from Borrower, by setoff
or in any other manner, payment of any other obligations of Borrower to
Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation of
such waiver or agreement, such payments shall be received by Guarantor as
trustee for Bank and shall be paid over to Bank on account of the Indebtedness,
but without reducing or affecting in any manner the liability of Guarantor under
the other provisions of this Guaranty. Any security interest, lien,
or other encumbrance that Guarantor may now or hereafter have on any property of
Borrower is hereby subordinated to any security interest, lien, or other
encumbrance that Bank may have on any such property.
11. Revocation of
Guaranty.
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(a) This
Guaranty may be revoked at any time by Guarantor in respect to future
transactions, unless there is a continuing consideration as to such
transactions that Guarantor does not renounce. Such revocation
shall be effective upon actual receipt by Bank, at the address shown below
or at such other address as may have been provided to Guarantor by Bank,
of written notice of revocation. Revocation shall not affect
any of Guarantor's obligations or Bank's rights with respect to
transactions committed or entered into prior to Bank's receipt of such
notice, regardless of whether or not the Indebtedness related to such
transactions, before or after revocation, has been incurred, renewed,
compromised, extended, accelerated, or otherwise changed as to any of its
terms, including time for payment or increase or decrease of the rate of
interest thereon, and regardless of any other act or omission of Bank
authorized hereunder. Revocation by Guarantor shall not affect any
obligations of any other guarantor.
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(b) In
the event of the death of a Guarantor, the liability of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the
Indebtedness existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower
after the date of the death of the deceased Guarantor pursuant to a
commitment made by Bank to Borrower prior to the date of such
death. As to all surviving Guarantors, this Guaranty shall
continue in full force and effect after the death of a Guarantor, not only
as to the Indebtedness existing at that time, but also as to the
Indebtedness thereafter incurred by Borrower to
Bank.
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(c) Guarantor
acknowledges and agrees that this Guaranty may be revoked only in
accordance with the foregoing provisions of this paragraph and shall not
be revoked simply as a result of any change in name, location, or
composition or structure of Borrower, the dissolution of Borrower, or the
termination, increase, decrease, or other change of any personnel or
owners of Borrower.
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12. Reinstatement of
Guaranty. If this Guaranty is revoked, returned, or canceled,
and subsequently any payment or transfer of any interest in property by Borrower
to Bank is rescinded or must be returned by Bank to Borrower, this Guaranty
shall be reinstated with respect to any such payment or transfer, regardless of
any such prior revocation, return, or cancellation.
13. Stay of
Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such Indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately if requested by
Bank.
14. No Setoff or Deductions;
Taxes.
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(a) Guarantor
represents and warrants that it is organized and resident in the United
States of America. All payments by Guarantor hereunder shall be
paid in full, without setoff or counterclaim or any deduction or
withholding whatsoever, including, without limitation, for any and all
present and future taxes. If Guarantor must make a payment
under this Guaranty, Guarantor represents and warrants that it will make
the payment from one of its U.S. resident offices to Bank so that no
withholding tax is imposed on the payment. Notwithstanding the
foregoing, if Guarantor makes a payment under this Guaranty to which
withholding tax applies or if any taxes (other than taxes on net income
(i) imposed by the country or any subdivision of the country in which
Bank's principal office or actual lending office is located and (ii)
measured by the United States taxable income Bank would have received if
all payments under or in respect of this Guaranty were exempt from taxes
levied by Guarantor's country) are at any time imposed on any payments
under or in respect of this Guaranty including, but not limited to,
payments made pursuant to this paragraph, Guarantor shall pay all such
taxes to the relevant authority in accordance with applicable law such
that Bank receives the sum it would have received had no such deduction or
withholding been made (or, if Guarantor cannot legally comply with the
foregoing, Guarantor shall pay to Bank such additional amounts as will
result in Bank receiving the sum it would have received had no such
deduction or withholding been made). Further, Guarantor shall
also pay to Bank, on demand, all additional amounts that Bank specifies as
necessary to preserve the after-tax yield Bank would have received if such
taxes had not been imposed.
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(b) Guarantor
shall promptly provide Bank with an original receipt or certified copy
issued by the relevant authority evidencing the payment of any such amount
required to be deducted or
withheld.
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15. Information Relating to
Borrower. Guarantor acknowledges and agrees that it has made
such independent examination, review, and investigation of the Bank Agreements
as Guarantor deems necessary and appropriate, including, without limitation, any
covenants pertaining to Guarantor contained therein, and shall have sole
responsibility to obtain from Borrower any information required by Guarantor
about any modifications thereto. Guarantor further acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
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16. Borrower's
Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners, members, managers,
or agents acting or purporting to act on its behalf, and any Indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder, subject to any limitations on Guarantor's liability set
forth herein.
17. Guarantor Information;
Reporting to Credit Bureaus. Guarantor authorizes Bank to
verify or check any information given by Guarantor to Bank, check Guarantor’s
credit references, verify employment, and obtain credit
reports. Guarantor agrees that Bank shall have the right at all times
to disclose and report to credit reporting agencies and credit rating agencies
such information pertaining to the Indebtedness and/or Guarantor as is
consistent with Bank's policies and practices from time to time in
effect. Guarantor acknowledges and agrees that the authorizations
provided in this paragraph apply to any individual general partner of Guarantor
and to Guarantor’s spouse and any such general partner’s spouse if Guarantor or
such general partner is married and lives in a community property
state.
18. Change of
Status. Any Guarantor that is a business entity shall not
enter into any consolidation, merger, or other combination unless Guarantor is
the surviving business entity. Further, Guarantor shall not change
its legal structure unless (a) Guarantor obtains the prior written consent of
Bank and (b) all Guarantor's obligations under this Guaranty are assumed by the
new business entity.
19. Remedies. If
Guarantor fails to fulfill its duty to pay all Indebtedness guaranteed
hereunder, Bank shall have all of the remedies of a creditor and, to the extent
applicable, of a secured party, under all applicable law. Without
limiting the foregoing
to the extent permitted by law, Bank may, at its option and without
notice or demand:
(a) declare
any Indebtedness due and payable at once;
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(b) take
possession of any collateral pledged by Borrower or Guarantor, wherever
located, and sell, resell, assign, transfer, and deliver all or any part
of the collateral at any public or private sale or otherwise dispose of
any or all of the collateral in its then condition, for cash or on credit
or for future delivery, and in connection therewith Bank may impose
reasonable conditions upon any such sale. Further, Bank, unless
prohibited by law the provisions of which cannot be waived, may purchase
all or any part of the collateral to be sold, free from and discharged of
all trusts, claims, rights of redemption and equities of Borrower or
Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any collateral through any nationally recognized
broker-dealer, investment banker, or any other method common in the
securities industry shall be deemed a commercially reasonable sale under
the Uniform Commercial Code or any other equivalent statute or federal
law, and expressly waives notice thereof except as provided herein;
and
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(c) set
off against any or all liabilities of Guarantor all money owed by Bank or
any of its agents or affiliates in any capacity to Guarantor, whether or
not due, and also set off against all other liabilities of Guarantor to
Bank all money owed by Bank in any capacity to Guarantor. If
exercised by Bank, Bank shall be deemed to have exercised such right of
setoff and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
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20. Notices. All
notices required under this Guaranty shall be personally delivered or sent by
first class mail, postage prepaid, or by overnight courier, to the addresses on
the signature page of this Guaranty, or sent by facsimile to the fax numbers
listed on the signature page, or to such other addresses as Bank and Guarantor
may specify from time to time in writing. Notices sent by (a) first
class mail shall be deemed delivered on the earlier of actual receipt or on the
fourth business day after deposit in the U.S. mail, postage prepaid,
(b) overnight courier shall be deemed delivered on the next business day,
and (c) telecopy shall be deemed delivered when transmitted.
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21. Successors and
Assigns. This Guaranty (a) binds Guarantor and Guarantor's
executors, administrators, successors, and assigns, provided that Guarantor may
not assign its rights or obligations under this Guaranty without the prior
written consent of Bank, and (b) inures to the benefit of Bank and Bank's
indorsees, successors, and assigns. Bank may, without notice to
Guarantor and without affecting Guarantor's obligations hereunder, sell, assign,
grant participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in
part. Guarantor agrees that Bank may disclose to any assignee or
purchaser, or any prospective assignee or purchaser, of all or part of the
Indebtedness any and all information in Bank's possession concerning Guarantor,
this Guaranty, and any security for this Guaranty.
22. Amendments, Waivers, and
Severability. No provision of this Guaranty may be amended or
waived except in writing. No failure by Bank to exercise, and no
delay in exercising, any of its rights, remedies, or powers shall operate as a
waiver thereof, and no single or partial exercise of any such right, remedy, or
power shall preclude any other or further exercise thereof or the exercise of
any other right, remedy, or power. The unenforceability or invalidity
of any provision of this Guaranty shall not affect the enforceability or
validity of any other provision of this Guaranty.
23. Costs and
Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Bank (a) in the enforcement of this Guaranty or (b) in the
preservation, protection, or enforcement of any rights of Bank in any case
commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title
11, United States Code) or any similar or successor statute.
24. Governing Law and
Jurisdiction. This Guaranty shall be governed by and construed
and enforced in accordance with the law of the State of Maryland. To
the extent that Bank has greater rights or remedies under federal law, whether
as a national bank or otherwise, this paragraph shall not be deemed to deprive
Bank of such rights and remedies as may be available under federal
law.
25. Consent
to Jurisdiction. TO INDUCE BANK TO ACCEPT THIS
GUARANTY, GUARANTOR IRREVOCABLY AGREES THAT, SUBJECT TO BANK’S SOLE AND ABSOLUTE
ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO
THIS GUARANTY WILL BE LITIGATED IN STATE OR FEDERAL COURTS HAVING SITUS IN
BALTIMORE, MARYLAND. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN BALTIMORE, MARYLAND
WAIVES PERSONAL SERVICE OF PROCESS UPON GUARANTOR, AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS STATED ON THE
SIGNATURE PAGE HEREOF AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON
ACTUAL RECEIPT.
26. Waiver of Jury
Trial. GUARANTOR AND BANK EACH WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THIS
GUARANTY OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
WITH THIS GUARANTY OR (B) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE. GUARANTOR AGREES THAT IT
WILL NOT ASSERT ANY CLAIM AGAINST BANK OR ANY OTHER PERSON INDEMNIFIED UNDER
THIS GUARANTY ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES.
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27. CONFESSION OF
JUDGMENT. GUARANTOR AUTHORIZES ANY ATTORNEY ADMITTED TO
PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR ANY CLERK OF ANY
COURT OF RECORD TO APPEAR ON BEHALF OF GUARANTOR IN ANY COURT IN ONE OR MORE
PROCEEDINGS, OR BEFORE ANY CLERK THEREOF OR OTHER COURT OFFICIAL, AND TO CONFESS
JUDGMENT AGAINST GUARANTOR IN FAVOR OF THE HOLDER OF THIS GUARANTY IN THE FULL
AMOUNT DUE ON THIS GUARANTY (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY AND
ALL CHARGES, FEES AND COSTS) PLUS ATTORNEYS' FEES EQUAL TO FIFTEEN PERCENT (15%)
OF THE TOTAL AMOUNT DUE, PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR
OPPORTUNITY OF GUARANTOR FOR PRIOR HEARING. GUARANTOR AGREES AND
CONSENTS THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT COURT OF ANY
COUNTY OF THE STATE OF MARYLAND OR OF BALTIMORE CITY, MARYLAND, OR IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND. GUARANTOR WAIVES
THE BENEFIT OF ANY AND EVERY STATUTE, ORDINANCE, OR RULE OF COURT WHICH MAY BE
LAWFULLY WAIVED CONFERRING UPON GUARANTOR ANY RIGHT OR PRIVILEGE OF EXEMPTION,
HOMESTEAD RIGHTS, STAY OF EXECUTION, OR SUPPLEMENTARY PROCEEDINGS, OR OTHER
RELIEF FROM THE ENFORCEMENT OR IMMEDIATE ENFORCEMENT OF A JUDGMENT OR RELATED
PROCEEDINGS ON A JUDGMENT. THE AUTHORITY AND POWER TO APPEAR FOR AND
ENTER JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES
THEREOF, OR BY ANY IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY
ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH AUTHORITY AND POWER MAY BE EXERCISED
ON ONE OR MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR DIFFERENT
JURISDICTIONS, AS OFTEN AS THE HOLDER SHALL DEEM NECESSARY, CONVENIENT, OR
PROPER.
28. FINAL
AGREEMENT. BY SIGNING THIS DOCUMENT
EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF,
(B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS
SUCH COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND
CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY
EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
The parties executed this agreement as
of March 28, 2008, intending to create an instrument executed under
seal.
MSHI, Inc.
By: /s/ Xxxxxxx
Xxxxx
(Seal)
Xxxxxxx Xxxxx
Chief Financial Officer
Address
for notices to
Bank: Address
for notices to Guarantor:
000 Xxxxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx 0000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx
00000 Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:_____________________ Facsimile:_____________________
