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EXHIBIT 4.5
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT
THIS SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, dated
as of the 29th day of June, 1998 (this "Guaranty"), is made by each of the
undersigned Subsidiaries of LASON, INC., a Delaware corporation (the
"Borrower"), and each other direct or indirect Subsidiary of the Borrower that,
after the date hereof, executes an instrument of accession hereto substantially
in the form of Exhibit A (a "Guarantor Accession"; the undersigned and such
other direct or indirect Subsidiaries of the Borrower, collectively, the
"Guarantors"), in favor of the Guaranteed Parties (as hereinafter defined).
Capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement referred to below.
RECITALS
A. The Borrower, certain banks and other financial institutions
(collectively, the "Lenders"), and First Union National Bank, as agent for the
Lenders (in such capacity, the "Agent"), are parties to a Second Amended and
Restated Credit Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time, the "Credit Agreement"), providing for the
availability of certain credit facilities to the Borrower upon the terms and
conditions set forth therein.
B. Certain of the undersigned Subsidiaries, the Lenders and the
Agent have heretofore entered into an Amended and Restated Subsidiary Guaranty
Agreement dated February 21, 1997 (the "Amended and Restated Guaranty
Agreement"). This Guaranty is an amendment to, and is in substitution and
replacement of the Amended and Restated Guaranty Agreement.
C. It is a condition to the extension of credit to the Borrower
under the Credit Agreement that each Guarantor shall have agreed, by executing
and delivering this Guaranty, to guarantee to the Guaranteed Parties the payment
in full of the Guaranteed Obligations (as hereinafter defined). The Guaranteed
Parties are relying on this Guaranty in their decision to extend credit to the
Borrower under the Credit Agreement, and would not enter into the Credit
Agreement without this Guaranty.
D. Each Guarantor will obtain benefits as a result of the
extension of credit to the Borrower under the Credit Agreement, which benefits
are hereby acknowledged, and, accordingly, desires to execute and deliver this
Guaranty.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to induce the Guaranteed Parties to enter into the Credit
Agreement and to induce the Lenders to extend credit to the Borrower thereunder,
each Guarantor hereby agrees as follows:
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1. Guaranty. (a) Each Guarantor hereby irrevocably, absolutely
and unconditionally, and jointly and severally:
(i) guarantees to the Lenders (including the Issuing Lender
and the Swingline Lender in their capacities as such, and including any
Lender in its capacity as a counterparty to any Hedge Agreement with
the Borrower) and the Agent (collectively, the "Guaranteed Parties")
the full and prompt payment, at any time and from time to time as and
when due (whether at the stated maturity, by acceleration or
otherwise), of all Obligations of the Borrower under the Credit
Agreement and the other Credit Documents, including, without
limitation, all principal of and interest on the Loans, all
Reimbursement Obligations in respect of Letters of Credit, all fees,
expenses, indemnities and other amounts payable by the Borrower under
the Credit Agreement or any other Credit Document (including interest
accruing after the filing of a petition or commencement of a case by or
with respect to the Borrower seeking relief under any Insolvency Laws
(as hereinafter defined), whether or not the claim for such interest is
allowed in such proceeding), all obligations of the Borrower to any
Lender under any Hedge Agreement, and all Obligations that, but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due, in each case whether now existing or hereafter
created or arising and whether direct or indirect, absolute or
contingent, due or to become due (all liabilities and obligations
described in this clause (i), collectively, the "Guaranteed
Obligations"); and
(ii) agrees to pay or reimburse upon demand all reasonable
costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred or paid by (y) any Guaranteed
Party in connection with any suit, action or proceeding to enforce or
protect any rights of the Guaranteed Parties hereunder and (z) the
Agent in connection with any amendment, modification or waiver hereof
or consent pursuant hereto (all liabilities and obligations described
in this clause (ii), collectively, the "Other Obligations"; and the
Other Obligations, together with the Guaranteed Obligations, the "Total
Obligations").
(b) Notwithstanding the provisions of subsection (a) above and
notwithstanding any other provisions contained herein or in any other Credit
Document:
(i) no provision of this Guaranty shall require or
permit the collection from any Guarantor of interest in excess of the
maximum rate or amount that such Guarantor may be required or
permitted to pay pursuant to applicable law; and
(ii) the liability of each Guarantor under this Guaranty
as of any date shall be limited to a maximum aggregate amount (the
"Maximum Guaranteed Amount") equal to the greatest amount that would
not render such Guarantor's obligations under this Guaranty subject to
avoidance, discharge or reduction as of such date as a fraudulent
transfer or conveyance under applicable federal and state laws
pertaining to bankruptcy, reorganization, arrangement, moratorium,
readjustment of debts, dissolution, liquidation or other debtor
relief, specifically including, without limitation, the Bankruptcy
Code and any fraudulent transfer and fraudulent conveyance laws
(collectively, "Insolvency Laws"),
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in each instance after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under applicable
Insolvency Laws (specifically excluding, however, any liabilities of
such Guarantor in respect of intercompany indebtedness to the Borrower
or any of its Affiliates to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor
hereunder, and after giving effect as assets to the value (as
determined under applicable Insolvency Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights
of such Guarantor pursuant to (y) applicable law or (z) any agreement
(including this Guaranty) providing for an equitable allocation among
such Guarantor and other Affiliates of the Borrower of obligations
arising under guaranties by such parties).
(c) The Guarantors desire to allocate among themselves, in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made hereunder on any date by a
Guarantor (a "Funding Guarantor") that exceeds its Fair Share (as hereinafter
defined) as of such date, that Funding Guarantor shall be entitled to a
contribution from each of the other Guarantors in the amount of such other
Guarantor's Fair Share Shortfall (as hereinafter defined) as of such date, with
the result that all such contributions will cause each Guarantor's Aggregate
Payments (as hereinafter defined) to equal its Fair Share as of such date. "Fair
Share" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the ratio of (x) the Adjusted Maximum Guaranteed Amount (as
hereinafter defined) with respect to such Guarantor to (y) the aggregate of the
Adjusted Maximum Guaranteed Amounts with respect to all Guarantors, multiplied
by (ii) the aggregate amount paid or distributed on or before such date by all
Funding Guarantors hereunder in respect of the obligations guarantied. "Fair
Share Shortfall" means, with respect to a Guarantor as of any date of
determination, the excess, if any, of the Fair Share of such Guarantor over the
Aggregate Payments of such Guarantor. "Adjusted Maximum Guaranteed Amount"
means, with respect to a Guarantor as of any date of determination, the Maximum
Guaranteed Amount of such Guarantor, determined in accordance with the
provisions of subsection (b) above; provided that, solely for purposes of
calculating the "Adjusted Maximum Guaranteed Amount" with respect to any
Guarantor for purposes of this subsection (c), any assets or liabilities arising
by virtue of any rights to subrogation, reimbursement or indemnity or any rights
to or obligations of contribution hereunder shall not be considered as assets or
liabilities of such Guarantor. "Aggregate Payments" means, with respect to a
Guarantor as of any date of determination, the aggregate amount of all payments
and distributions made on or before such date by such Guarantor in respect of
this Guaranty (including, without limitation, in respect of this subsection
(c)). The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable
Funding Guarantor. Each Funding Guarantor's right of contribution under this
subsection (c) shall be subject to the provisions of SECTION 4. The allocation
among Guarantors of their obligations as set forth in this subsection (c) shall
not be construed in any way to limit the liability of any Guarantor hereunder to
the Guaranteed Parties.
(d) The guaranty of each Guarantor set forth in this Section is a
guaranty of payment as a primary obligor, and not a guaranty of collection. Each
Guarantor hereby acknowledges and agrees that the Guaranteed Obligations, at any
time and from time to time, may exceed the Maximum Guaranteed Amount of such
Guarantor and may exceed the aggregate of the Maximum Guaranteed Amounts of all
Guarantors, in each case without discharging, limiting or otherwise
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affecting the obligations of any Guarantor hereunder or the rights, powers and
remedies of any Guaranteed Party hereunder or under any other Credit Document.
2. Guaranty Absolute. Each Guarantor agrees that its obligations
hereunder are irrevocable, absolute and unconditional, are independent of the
Guaranteed Obligations and any Collateral or other security therefor or other
guaranty or liability in respect thereof, whether given by such Guarantor or
any other Person, and (to the fullest extent permitted by applicable law) shall
not be discharged, limited or otherwise affected by reason of any of the
following, whether or not such Guarantor has notice or knowledge thereof:
(i) any change in the time, manner or place of payment
of, or in any other term of, any Guaranteed Obligations or any guaranty
or other liability in respect thereof, or any amendment, modification
or supplement to, restatement of, or consent to any rescission or
waiver of or departure from, any provisions of the Credit Agreement,
any other Credit Document or any agreement or instrument delivered
pursuant to any of the foregoing;
(ii) the invalidity or unenforceability of any Guaranteed
Obligations, any guaranty or other liability in respect thereof or any
provisions of the Credit Agreement, any other Credit Document or any
agreement or instrument delivered pursuant to any of the foregoing;
(iii) the addition or release of Guarantors hereunder or
the taking, acceptance or release of other guarantees of any Guaranteed
Obligations or additional Collateral or other security for any
Guaranteed Obligations or for any guaranty or other liability in
respect thereof;
(iv) any renewal, extension, increase, decrease, release,
discharge, modification, settlement, compromise or other action in
respect of any Guaranteed Obligations or any guaranty or other
liability in respect thereof, including any acceptance or refusal of
any offer or performance with respect to the same or the subordination
of the same to the payment of any other obligations;
(v) any agreement not to pursue or enforce or any
failure to pursue or enforce (whether voluntarily or involuntarily as a
result of operation of law, court order or otherwise) any right or
remedy in respect of any Guaranteed Obligations, any guaranty or
other liability in respect thereof or any Collateral or other security
for any of the foregoing; any sale, exchange, release, substitution,
compromise or other action in respect of any such Collateral or other
security; or any failure to create, protect, perfect, secure, insure,
continue or maintain any Liens in any such Collateral or other
security;
(vi) the exercise of any right or remedy available under
the Credit Documents, at law, in equity or otherwise in respect of any
Collateral or other security for any Guaranteed Obligations or for any
guaranty or other liability in respect thereof, in any order and by any
manner thereby permitted, including, without limitation, foreclosure on
any such Collateral or other security by any manner of sale thereby
permitted, whether or not every aspect of such sale is commercially
reasonable;
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(vii) any bankruptcy, reorganization, arrangement,
liquidation, insolvency, dissolution, termination, reorganization or
like change in the corporate structure or existence of the Borrower or
any other Person directly or indirectly liable for any Guaranteed
Obligations;
(viii) any manner of application of any payments by or
amounts received or collected from any Person, by whomsoever paid and
howsoever realized, whether in reduction of any Guaranteed Obligations
or any other obligations of the Borrower or any other Person directly
or indirectly liable for any Guaranteed Obligations, regardless of what
Guaranteed Obligations may remain unpaid after any such application; or
(ix) any other circumstance that might otherwise
constitute a legal or equitable discharge of, or a defense, set-off or
counterclaim available to, the Borrower, any Guarantor or a surety or
guarantor generally, other than the occurrence of all of the following:
(x) the payment in full of the Total Obligations, (y) the termination
of the Commitments and the termination or expiration of all Letters of
Credit under the Credit Agreement, and (z) the termination of, and
settlement of all obligations of the Borrower under, each Hedge
Agreement to which the Borrower and any Lender are parties (the events
in clauses (x), (y) and (z) above, collectively, the "Termination
Requirements").
3. Certain Waivers. Each Guarantor hereby knowingly, voluntarily
and expressly waives to the fullest extent permitted by applicable law:
(i) presentment, demand for payment, demand for
performance, protest and notice of any other kind, including, without
limitation, notice of nonpayment or other nonperformance (including
notice of default under any Credit Document with respect to any
Guaranteed Obligations), protest, dishonor, acceptance hereof,
extension of additional credit to the Borrower and of any of the
matters referred to in SECTION 2 and of any rights to consent thereto;
(ii) any right to require the Guaranteed Parties or any
of them, as a condition of payment or performance by such Guarantor
hereunder, to proceed against, or to exhaust or have resort to any
Collateral or other security from or any deposit balance or other
credit in favor of, the Borrower, any other Guarantor or any other
Person directly or indirectly liable for any Guaranteed Obligations, or
to pursue any other remedy or enforce any other right; and any other
defense based on an election of remedies with respect to any Collateral
or other security for any Guaranteed Obligations of for any guaranty or
other liability in respect thereof, notwithstanding that any such
election (including any failure to pursue or enforce any rights or
remedies) may impair or extinguish any right of indemnification,
contribution, reimbursement or subrogation or other right or remedy of
any Guarantor against the Borrower, any other Guarantor or any other
Person directly or indirectly liable for any Guaranteed Obligations or
any such Collateral or other security; and, without limiting the
generality of the foregoing, each Guarantor hereby specifically waives
the benefits of Sections 26-7 through 26-9, inclusive, of the General
Statutes of North Carolina, as amended from time to time, and any
similar statute or law of any other jurisdiction, as the same may be
amended from time to time;
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(iii) any right or defense based on or arising by reason of
any right or defense of the Borrower or any other Person, including,
without limitation, any defense based on or arising from a lack of
authority or other disability of the Borrower or any other Person, the
invalidity or unenforceability of any Guaranteed Obligations, any
Collateral or other security therefor or any Credit Document or other
agreement or instrument delivered pursuant thereto, or the cessation of
the liability of the Borrower for any reason other than the
satisfaction of the Termination Requirements;
(iv) any defense based on any Guaranteed Party's acts or
omissions in the administration of the Guaranteed Obligations, any
guaranty or other liability in respect thereof or any Collateral or
other security for any of the foregoing, and promptness, diligence or
any requirement that any Guaranteed Party create, protect, perfect,
secure, insure, continue or maintain any Liens in any such Collateral
or other security;
(v) any right to assert against any Guaranteed Party, as
a defense, counterclaim, crossclaim or set-off, any defense,
counterclaim, claim, right of recoupment or set-off that it may at any
time have against any Guaranteed Party (including, without limitation,
failure of consideration, statute of limitations, payment, accord and
satisfaction and usury), other than compulsory counterclaims; and
(vi) any defense based on or afforded by any applicable
law that limits the liability of or exonerates guarantors or sureties
or that may in any other way conflict with the terms of this Guaranty.
4. Waiver of Subrogation; Subordination. Each Guarantor hereby
knowingly, voluntarily and expressly waives (to the fullest extent permitted by
applicable law), until satisfaction of the Termination Requirements all claims
and rights that it may have against the Borrower at any time as a result of any
payment made under or in connection with this Guaranty or the performance or
enforcement hereof, including all rights of subrogation to the rights of any of
the Guaranteed Parties against the Borrower, all rights of indemnity,
contribution or reimbursement against the Borrower (including rights of
contribution as set forth in SECTION 1(C)), all rights to enforce any remedies
of any Guaranteed Party against the Borrower, and any benefit of, and any right
to participate in, any Collateral or other security held by any Guaranteed Party
to secure payment of the Guaranteed Obligations, in each case whether such
claims or rights arise by contract, statute (including without limitation the
Bankruptcy Code), common law or otherwise. Each Guarantor agrees that all
indebtedness and other obligations, whether now or hereafter existing, of the
Borrower or any other Subsidiary of the Borrower to such Guarantor, including,
without limitation, any such indebtedness in any proceeding under the Bankruptcy
Code and any intercompany receivables, together with any interest thereon, shall
be, and hereby are, subordinated and made junior in right of payment to the
Total Obligations. Each Guarantor further agrees that if any amount shall be
paid to or any distribution received by any Guarantor (i) on account of any such
indebtedness at any time after the occurrence and during the continuance of an
Event of Default, or (ii) on account of any such rights of subrogation,
indemnity, contribution or reimbursement at any time prior to the satisfaction
of the Termination Requirements, such amount or distribution shall be deemed to
have been received and to be held in trust for the benefit of the Guaranteed
Parties, and shall forthwith be delivered to the Agent in the form received
(with any necessary endorsements in the case of written instruments), to be
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applied against the Guaranteed Obligations, whether or not matured, in
accordance with the terms of the applicable Credit Documents and without in any
way discharging, limiting or otherwise affecting the liability of such Guarantor
under any other provision of this Guaranty. Additionally, in the event the
Borrower or any Subsidiary of the Borrower becomes a "debtor" within the meaning
of the Bankruptcy Code, the Agent shall be entitled, at its option, on behalf of
the Guaranteed Parties and as attorney-in-fact for each Guarantor, and is hereby
authorized and appointed by each Guarantor, to file proofs of claim on behalf of
each relevant Guarantor and vote the rights of each such Guarantor in any plan
of reorganization, and to demand, xxx for, collect and receive every payment and
distribution on any indebtedness of the Borrower or such Subsidiary to any
Guarantor in any such proceeding, each Guarantor hereby assigning to the Agent
all of its rights in respect of any such claim, including the right to receive
payments and distributions in respect thereof.
5. Representations and Warranties. Each Guarantor hereby
represents and warrants to the Guaranteed Parties as follows:
(a) Such Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the full corporate power and authority to execute, deliver
and perform this Guaranty and the other Credit Documents to which it is or will
be a party, to own and hold its property and to engage in its business as
presently conducted.
(b) Such Guarantor has taken all necessary corporate action to
execute, deliver and perform this Guaranty and each of the other Credit
Documents to which it is or will be a party, and has, or on any later date of
execution and delivery will have, validly executed and delivered each of the
Credit Documents to which it is or will be a party. This Guaranty constitutes,
and each of such other Credit Documents upon execution and delivery will
constitute, the legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general equitable principles.
(c) The execution, delivery and performance by such Guarantor of
this Guaranty and the other Credit Documents to which it is a party, and
compliance by it with the terms hereof and thereof, do not and will not (i)
violate any provision of its articles or certificate of incorporation or bylaws,
(ii) contravene any Requirement of Law applicable to it, (iii) require any
approval of its stockholders or members or any approval or consent of any Person
under any agreement to which it is a party, (iv) conflict with, result in a
breach of or constitute (with notice, lapse of time or both) a default under any
indenture, loan agreement, mortgage, deed of trust, lease or other agreement or
instrument to which it is a party, by which it or any of its properties is bound
or to which it is subject, or (v) result in or require the creation or
imposition of any Lien upon any of its properties, other than Liens created
pursuant to the Credit Documents.
(d) No consent, approval, authorization or other action by, notice
to, or registration or filing with, any Governmental Authority or other Person
is or will be required as a condition to or otherwise in connection with the due
execution, delivery and performance by such Guarantor of
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this Guaranty and the other Credit Documents to which it is a party or the
legality, validity or enforceability hereof or thereof.
(e) There are no actions, investigations, suits or proceedings
pending or, to the knowledge of such Guarantor (after due investigation),
threatened, at law, in equity or in arbitration, before any court, other
Governmental Authority or other Person, (i) against or affecting such Guarantor
or any of its properties that would, if adversely determined, reasonably be
expected to have a Material Adverse Effect or (ii) with respect to this Guaranty
or any of the other Credit Documents to which such Guarantor is a party.
(f) Such Guarantor has been provided with a true and complete copy
of the executed Credit Agreement, as in effect as of the date it became a party
hereto, and its principal officers are familiar with the contents thereof,
particularly insofar as the contents thereof relate or apply to such Guarantor.
6. Financial Condition of Borrower. Each Guarantor represents
that it has knowledge of the Borrower's financial condition and affairs and that
it has adequate means to obtain from the Borrower on an ongoing basis
information relating thereto and to the Borrower's ability to pay and perform
the Guaranteed Obligations, and agrees to assume the responsibility for keeping,
and to keep, so informed for so long as this Guaranty is in effect with respect
to such Guarantor. Each Guarantor agrees that the Guaranteed Parties shall have
no obligation to investigate the financial condition or affairs of the Borrower
for the benefit of any Guarantor nor to advise any Guarantor of any fact
respecting, or any change in, the financial condition or affairs of the Borrower
that might become known to any Guaranteed Party at any time, whether or not such
Guaranteed Party knows or believes or has reason to know or believe that any
such fact or change is unknown to any Guarantor, or might (or does) materially
increase the risk of any Guarantor as guarantor, or might (or would) affect the
willingness of any Guarantor to continue as a guarantor of the Guaranteed
Obligations.
7. Payments; Application; Set-Off. (a) Each Guarantor agrees
that, upon the failure of the Borrower to pay any Guaranteed Obligations when
and as the same shall become due (whether at the stated maturity, by
acceleration or otherwise), and without limitation of any other right or remedy
that any Guaranteed Party may have at law, in equity or otherwise against such
Guarantor, such Guarantor will, subject to the provisions of SECTION 1(B),
forthwith pay or cause to be paid to the Agent, for the benefit of the
Guaranteed Parties, an amount equal to the amount of the Guaranteed Obligations
then due and owing as aforesaid.
(b) All payments made by each Guarantor hereunder will be made in
Dollars to the Agent, without set-off, counterclaim or other defense and, in
accordance with Section 2.17 of the Credit Agreement, free and clear of and
without deduction for any Taxes, each Guarantor hereby agreeing to comply with
and be bound by the provisions of Section 2.17 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Section
are hereby incorporated into and made a part of this Guaranty by this reference
as if set forth herein at length.
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(c) All payments made hereunder shall be applied upon receipt as
follows:
(i) first, to the payment of all Other Obligations owing
to the Agent;
(ii) second, after payment in full of the amounts
specified in clause (i) above, to the ratable payment of all other
Total Obligations owing to the Guaranteed Parties; and
(iii) third, after payment in full of the amounts specified
in clauses (i) and (ii) above, and following the termination of this
Guaranty, to the Guarantors or any other Person lawfully entitled to
receive such surplus.
(d) For purposes of applying amounts in accordance with this
Section, the Agent shall be entitled to rely upon any Guaranteed Party that has
entered into a Hedge Agreement with the Borrower for a determination (which such
Guaranteed Party agrees to provide or cause to be provided upon request of the
Agent) of the outstanding Guaranteed Obligations owed to such Guaranteed Party
under any such Hedge Agreement. Unless it has actual knowledge (including by way
of written notice from any such Guaranteed Party) to the contrary, the Agent, in
acting hereunder, shall be entitled to assume that no Hedge Agreements or
Obligations in respect thereof are in existence between any Guaranteed Party and
the Borrower.
(e) The Guarantors shall remain jointly and severally liable to the
extent of any deficiency between the amount of all payments made hereunder and
the aggregate amount of the sums referred to in clauses (i) and (ii) of
subsection (c) above.
(f) In addition to all other rights and remedies available under
the Credit Documents or applicable law or otherwise, upon and at any time after
the occurrence and during the continuance of any Event of Default, each
Guaranteed Party may, and is hereby authorized by each Guarantor, at any such
time and from time to time, to the fullest extent permitted by applicable law,
without presentment, demand, protest or other notice of any kind, all of which
are hereby knowingly and expressly waived by each Guarantor, to set off and to
apply any and all deposits (general or special, time or demand, provisional or
final) and any other property at any time held (including at any branches or
agencies, wherever located), and any other indebtedness at any time owing, by
such Guaranteed Party to or for the credit or the account of such Guarantor
against any or all of the obligations of such Guarantor to such Guaranteed Party
hereunder now or hereafter existing, whether or not such obligations may be
contingent or unmatured, each Guarantor hereby granting to each Guaranteed Party
a continuing security interest in and Lien upon all such deposits and other
property as security for such obligations. Each Guaranteed Party agrees to
notify any affected Guarantor promptly after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
8. No Waiver. The rights and remedies of the Guaranteed Parties
expressly set forth in this Guaranty and the other Credit Documents are
cumulative and in addition to, and not exclusive of, all other rights and
remedies available at law, in equity or otherwise. No failure or delay on the
part of any Guaranteed Party in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or
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privilege or be construed to be a waiver of any Default or Event of Default. No
course of dealing between any of the Guarantors and the Guaranteed Parties or
their agents or employees shall be effective to amend, modify or discharge any
provision of this Guaranty or any other Credit Document or to constitute a
waiver of any Default or Event of Default. No notice to or demand upon any
Guarantor in any case shall entitle such Guarantor or any other Guarantor to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the right of any Guaranteed Party to exercise any right
or remedy or take any other or further action in any circumstances without
notice or demand.
9. Enforcement. The Guaranteed Parties agree that, except as
provided in SECTION 7(F), this Guaranty may be enforced only by the Agent,
acting upon the instructions or with the consent of the Required Lenders as
provided for in the Credit Agreement, and that no Guaranteed Party shall have
any right individually to enforce or seek to enforce this Guaranty or to realize
upon any Collateral or other security given to secure the payment and
performance of the Guarantors' obligations hereunder. The obligations of each
Guarantor hereunder are independent of the Guaranteed Obligations, and a
separate action or actions may be brought against each Guarantor whether or not
action is brought against the Borrower or any other Guarantor and whether or not
the Borrower or any other Guarantor is joined in any such action. Each Guarantor
agrees that to the extent all or part of any payment of the Guaranteed
Obligations made by any Person is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by or on behalf
of any Guaranteed Party to a trustee, receiver or any other party under any
Insolvency Laws (the amount of any such payment, a "Reclaimed Amount"), then, to
the extent of such Reclaimed Amount, this Guaranty shall continue in full force
and effect or be revived and reinstated, as the case may be, as to the
Guaranteed Obligations intended to be satisfied as if such payment had not been
received; and each Guarantor acknowledges that the term "Guaranteed Obligations"
includes all Reclaimed Amounts that may arise from time to time.
10. Amendments, Waivers, etc. No amendment, modification, waiver,
discharge or termination of, or consent to any departure by any Guarantor from,
any provision of this Guaranty, shall be effective unless in a writing signed by
the Agent and such of the Lenders as may be required under the provisions of the
Credit Agreement to concur in the action then being taken, and then the same
shall be effective only in the specific instance and for the specific purpose
for which given.
11. Addition, Release of Guarantors. Each Guarantor recognizes
that the provisions of the Credit Agreement require Persons that become
Subsidiaries of the Borrower and that are not already parties hereto to become
Guarantors hereunder by executing a Guarantor Accession, and agrees that its
obligations hereunder shall not be discharged, limited or otherwise
affected by reason of the same, or by reason of the Agent's actions in
effecting the same or in releasing any Guarantor hereunder, in each case
without the necessity of giving notice to or obtaining the consent of any other
Guarantor.
12. Continuing Guaranty; Term; Successors and Assigns; Assignment;
Survival. This Guaranty is a continuing guaranty and covers all of the
Guaranteed Obligations as the same may arise and be outstanding at any time and
from time to time from and after the date hereof, and shall (i) remain in full
force and effect until satisfaction of all of the Termination Requirements,
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(ii) be binding upon and enforceable against each Guarantor and its successors
and assigns (provided, however, that no Guarantor may sell, assign or transfer
any of its rights, interests, duties or obligations hereunder without the prior
written consent of the Lenders) and (iii) inure to the benefit of and be
enforceable by each Guaranteed Party and its successors and assigns. Without
limiting the generality of clause (iii) above, any Guaranteed Party may, in
accordance with the provisions of the Credit Agreement, assign all or a portion
of the Guaranteed Obligations held by it (including by the sale of
participations), whereupon each Person that becomes the holder of any such
Guaranteed Obligations shall (except as may be otherwise agreed between such
Guaranteed Party and such Person) have and may exercise all of the rights and
benefits in respect thereof granted to such Guaranteed Party under this Guaranty
or otherwise. Each Guarantor hereby irrevocably waives notice of and consents in
advance to the assignment as provided above from time to time by any Guaranteed
Party of all or any portion of the Guaranteed Obligations held by it and of the
corresponding rights and interests of such Guaranteed Party hereunder in
connection therewith. All representations, warranties, covenants and agreements
herein shall survive the execution and delivery of this Guaranty and any
Guarantor Accession.
13. Governing Law; Consent to Jurisdiction; Appointment of
Borrower as Representative, Process Agent, Attorney-in-Fact. (a) THIS GUARANTY
HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT, AND SHALL BE DEEMED TO HAVE BEEN
MADE IN, NORTH CAROLINA AND SHALL BE INTERPRETED, AND THE RIGHTS AND
LIABILITIES OF THE GUARANTEED PARTIES AND THE GUARANTORS DETERMINED, IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS)
OF THE STATE OF NORTH CAROLINA. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS
DAY RECEIVED, EACH GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
COURT WITHIN MECKLENBURG COUNTY, NORTH CAROLINA OR ANY FEDERAL COURT LOCATED
WITHIN THE WESTERN DISTRICT OF THE STATE OF NORTH CAROLINA FOR ANY PROCEEDING
INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS, OR ARISING OUT
OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER CREDIT DOCUMENTS, OR
ANY PROCEEDING TO WHICH ANY GUARANTEED PARTY OR SUCH GUARANTOR IS A PARTY,
INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR IN CONNECTION WITH ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY GUARANTEED PARTY OR SUCH GUARANTOR. EACH GUARANTOR IRREVOCABLY
AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT
RENDERED OR RELIEF GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY
HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO
THE CONDUCT OF ANY SUCH PROCEEDING.
(b) EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES AND APPOINTS THE
BORROWER AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE ON ITS BEHALF ALL
SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING AND ANY OTHER NOTICE OR
COMMUNICATION HEREUNDER, CONSENTS THAT ALL SERVICE OF PROCESS UPON IT MAY BE
MADE BY
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REGISTERED OR CERTIFIED MAIL DIRECTED TO THE BORROWER AT ITS ADDRESS FOR
NOTICES SET FORTH IN THE CREDIT AGREEMENT (AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) BUSINESS
DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID AND
PROPERLY ADDRESSED), AND AGREES THAT SERVICE SO MADE SHALL BE EFFECTIVE AND
BINDING UPON SUCH GUARANTOR IN EVERY RESPECT AND THAT ANY OTHER NOTICE OR
COMMUNICATION GIVEN TO THE BORROWER AT THE ADDRESS AND IN THE MANNER SPECIFIED
HEREIN SHALL BE EFFECTIVE NOTICE TO SUCH GUARANTOR. FURTHER, EACH GUARANTOR DOES
HEREBY IRREVOCABLY MAKE, CONSTITUTE AND APPOINT THE BORROWER AS ITS TRUE AND
LAWFUL ATTORNEY-IN-FACT, WITH FULL AUTHORITY IN ITS PLACE AND STEAD AND IN ITS
NAME, THE BORROWER'S NAME OR OTHERWISE, AND WITH FULL POWER OF SUBSTITUTION IN
THE PREMISES, FROM TIME TO TIME IN THE BORROWER'S DISCRETION TO AGREE ON BEHALF
OF, AND SIGN THE NAME OF, SUCH GUARANTOR TO ANY AMENDMENT, MODIFICATION OR
SUPPLEMENT TO, RESTATEMENT OF, OR WAIVER OR CONSENT IN CONNECTION WITH, THIS
GUARANTY, ANY OTHER CREDIT DOCUMENT OR ANY DOCUMENT OR INSTRUMENT PURSUANT
HERETO OR THERETO, AND TO TAKE ANY OTHER ACTION AND DO ALL OTHER THINGS ON
BEHALF OF SUCH GUARANTOR THAT THE BORROWER MAY DEEM NECESSARY OR ADVISABLE TO
CARRY OUT AND ACCOMPLISH THE PURPOSES OF THIS GUARANTY AND THE OTHER CREDIT
DOCUMENTS. THE BORROWER WILL NOT BE LIABLE FOR ANY ACT OR OMISSION NOR FOR ANY
ERROR OF JUDGMENT OR MISTAKE OF FACT UNLESS THE SAME SHALL OCCUR AS A RESULT OF
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BORROWER. THIS POWER, BEING
COUPLED WITH AN INTEREST, IS IRREVOCABLE BY ANY GUARANTOR FOR SO LONG AS THIS
GUARANTY SHALL BE IN EFFECT WITH RESPECT TO SUCH GUARANTOR. BY ITS SIGNATURE
HERETO, THE BORROWER CONSENTS TO ITS APPOINTMENT AS PROVIDED FOR HEREIN AND
AGREES PROMPTLY TO DISTRIBUTE ALL PROCESS, NOTICES AND OTHER COMMUNICATIONS TO
EACH GUARANTOR.
(c) NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY
GUARANTEED PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY GUARANTOR IN THE
COURTS OF ANY OTHER JURISDICTION.
14. Arbitration; Preservation and Limitation of Remedies. (a) Upon
demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of, or relating to
this Guaranty or any other Credit Document ("Disputes") between or among the
Guarantors and the Guaranteed Parties, or any of them, shall be resolved by
binding arbitration conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act, as in effect from time
to time. Institution of a judicial
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proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration, claims
brought as class actions, claims arising from documents executed in the future,
or claims arising out of or connected with the transactions contemplated by this
Guaranty, the Credit Agreement and the other Credit Documents. Notwithstanding
the foregoing, this arbitration provision does not apply to Disputes under or
related to Hedge Agreements. All arbitration hearings shall be conducted in the
city in which the principal office of the Agent is located. A hearing shall
begin within 90 days of demand for arbitration and all hearings shall be
concluded within 120 days of demand for arbitration. These time limitations may
not be extended unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in Rule 51 et seq.
of the Arbitration Rules shall be applicable to claims of less than $1,000,000.
All applicable statutes of limitation shall apply to any Dispute. A judgment
upon the award may be entered in any court having jurisdiction. The panel from
which all arbitrators are selected shall be comprised of licensed attorneys
selected from the Commercial Financial Dispute Arbitration panel of the AAA.
(b) Notwithstanding the preceding binding arbitration provisions,
the parties hereto agree to preserve, without diminution, certain remedies that
any party hereto may employ or exercise freely, either alone, in conjunction
with or during a Dispute. Any party hereto shall have the right to proceed in
any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any
Collateral by exercising a power of sale granted pursuant to any of the Credit
Documents or under applicable law or by judicial foreclosure and sale, including
a proceeding to confirm the sale; (ii) all rights of self-help, including
peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies, including injunctive relief, sequestration, garnishment,
attachment, appointment of a receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment. Any
claim or controversy with regard to any party's entitlement to such remedies is
a Dispute. Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party in a
Dispute. The parties hereto agree that no party shall have a remedy of punitive
or exemplary damages against any other party in any Dispute, and each party
hereby waives any right or claim to punitive or exemplary damages that it has
now or that may arise in the future in connection with any Dispute, whether such
Dispute is resolved by arbitration or judicially.
15. Waiver of Jury Trial. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF
THE BENEFITS HEREOF, EACH GUARANTEED PARTY, HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OF
THE OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH ANY GUARANTEED PARTY OR
SUCH GUARANTOR IS A PARTY, INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR
IN CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF ANY GUARANTEED PARTY OR SUCH GUARANTOR. The scope
of this waiver is intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including, without limitation, contract
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claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each Guarantor and, by its acceptance of the benefits hereof,
each Guaranteed Party, (i) acknowledges that this waiver is a material
inducement to enter into a business relationship, that it has relied on this
waiver in entering into this Guaranty or accepting the benefits hereof, as the
case may be, and that it will continue to rely on this waiver in its related
future dealings with the other parties hereto, and (ii) further warrants and
represents that it has reviewed this waiver with its legal counsel and that,
based upon such review, it knowingly and voluntarily waives its jury trial
rights to the extent permitted by applicable law. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, MODIFICATIONS OR SUPPLEMENTS TO OR
RESTATEMENTS OF THIS GUARANTY OR ANY OF THE OTHER CREDIT DOCUMENTS. IN THE EVENT
OF LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT. IN THE EVENT THAT THE WAIVER OF JURY TRIAL HEREIN SHALL BE DETERMINED TO
BE INVALID OR UNENFORCEABLE AS A MATTER OF LAW WITH RESPECT TO ANY PARTY, THE
PROVISIONS OF SECTION 14 SHALL GOVERN AS TO THE MATTERS SET FORTH THEREIN WITH
RESPECT TO SUCH PARTY.
16. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered (a) if to any Guarantor, in care of the Borrower
and at the Borrower's address for notices set forth in the Credit Agreement and
(b) if to any Guaranteed Party, at its address for notices set forth in the
Credit Agreement; or to such other address as any of the Persons listed above
may designate for itself by like notice to the other Persons listed above; and
in each case, with copies to such other Persons as may be specified under the
provisions of the Credit Agreement. All such notices and communications shall be
deemed to have been given (i) if mailed as provided above by any method other
than overnight delivery service, on the third Business Day after deposit in the
mails, (ii) if mailed by overnight delivery service, telegraphed, telexed,
telecopied or cabled, when delivered for overnight delivery, delivered to the
telegraph company, confirmed by telex answerback, transmitted by telecopier or
delivered to the cable company, respectively, or (iii) if delivered by hand,
upon delivery; provided that notices and communications to the Agent shall not
be effective until received by the Agent.
17. Severability. To the extent any provision of this Guaranty is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Guaranty in any jurisdiction.
18. Construction. The headings of the various sections and
subsections of this Guaranty have been inserted for convenience only and shall
not in any way affect the meaning or construction of any of the provisions
hereof. Unless the context otherwise requires, words in the singular include the
plural and words in the plural include the singular.
19. Counterparts; Effectiveness. This Guaranty may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which when so
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executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. This Guaranty shall become effective, as
to any Guarantor, upon the execution and delivery by such Guarantor of a
counterpart hereof or a Guarantor Accession.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed by its duly authorized officers as of the date first above written.
LASON SERVICES, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Title: Xxxx X Xxxxxx
President and CEO
-------------------------------
LASON SYSTEMS, INC.
By: Xxxx X. Xxxxxx
--------------------------------
Title: Xxxx X Xxxxxx
President and CEO
--------------------------------
MICRO-PRO, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: Xxxxxxx X. Xxxxxxxxxx
Treasurer
--------------------------------
LASON INTERNATIONAL, INC.
By: Xxxx X. Xxxxxx
--------------------------------
Title: Xxxx X Xxxxxx
President and CEO
--------------------------------
Accepted and agreed to:
FIRST UNION NATIONAL BANK,
As Agent
By:
-------------------------------------
Title:
----------------------------------
(signatures continued)
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed by its duly authorized officers as of the date first above written.
LASON SERVICES, INC.
By:
---------------------------------
Title:
--------------------------------
LASON SYSTEMS, INC.
By:
--------------------------------
Title:
--------------------------------
MICRO-PRO, INC.
By:
--------------------------------
Title:
--------------------------------
LASON INTERNATIONAL, INC.
By:
--------------------------------
Title:
--------------------------------
Accepted and agreed to:
FIRST UNION NATIONAL BANK,
As Agent
By: Xxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Xxxxx X. Xxxxxxxxxx
----------------------------------
Vice President
(signatures continued)
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The Borrower hereby joins in this Guaranty for purposes of evidencing
its consent to, and agreement to perform, the provisions of Section 13(b).
LASON, INC.
By: Xxxx X. Xxxxxx
------------------------------------
Title: Xxxx X. Xxxxxx
President and CEO
---------------------------------
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