EXHIBIT 10.3
RECOURSE CARVE-OUT GUARANTY
THIS RECOURSE CARVE-OUT GUARANTY (this "Guaranty") is made as of
September 4, 2003, by INDUS INTERNATIONAL, INC., a Delaware corporation
("Guarantor") in favor of NEW SMALL RESEARCH, LLC, a South Carolina limited
liability company ("Lender").
1. Loan and Note. This Guaranty is executed in connection with a
$11,500,000.00 loan ("Loan") made by Lender to Indus Utility Systems, Inc., a
Delaware corporation ("Borrower"). The Loan is (a) evidenced by a Promissory
Note of even date herewith in the original principal amount of the Loan
("Note"), and (b) secured by, among other things, a Mortgage and Security
Agreement of even date herewith granted by Borrower for the benefit of Lender
("Security Instrument," and, together with the Note and all other documents
executed by Borrower evidencing and/or securing the Loan, "Loan Documents")
covering certain real property and improvements more particularly described in
the Security Instrument. All capitalized terms used herein without definition
shall have the meanings given to such terms in the Security Instrument.
2. Purpose and Consideration. The execution and delivery of this
Guaranty by Guarantor is a condition to Lender's willingness to make the Loan
to Borrower, is made in order to induce Lender to make the Loan, and is made in
recognition that Lender will be relying upon this Guaranty in making the Loan
and performing any other obligations it may have under the Loan Documents.
Guarantor has a significant ownership interest in Borrower, and, accordingly,
acknowledges that Guarantor will receive material direct and indirect benefit
from Lender making the Loan to Borrower. Guarantor either has reviewed, or has
had an opportunity to review, the Loan Documents, and is otherwise fully
familiar with the terms of the Loan.
3. Guaranty. Guarantor hereby guarantees absolutely,
unconditionally, primarily, and irrevocably, payment and performance of all
obligations of Borrower described in Section 10 of the Note (collectively, the
"Obligations"). Guarantor hereby acknowledges and agrees that this Guaranty is
an absolute, irrevocable, present and continuing guaranty of payment and not of
collection.
4. Guaranty is Independent and Absolute. The obligations of
Guarantor hereunder are independent of the obligations of Borrower. Guarantor
is jointly and severally liable with Borrower. Guarantor expressly agrees that
a separate action or actions may be brought and prosecuted against Guarantor,
whether or not any action is brought against Borrower and whether or not
Borrower is joined in any action against Guarantor. Guarantor further agrees
that Lender shall have no obligation to proceed against any security for the
Obligations prior to enforcing this Guaranty against Guarantor, and that Lender
may pursue or omit to pursue any and all rights and remedies Lender has against
any person or with respect to any security in any order or simultaneously or in
any other manner. All rights of Lender and all obligations of Guarantor
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Note or any other Loan Document, and (b) any
other circumstances which might otherwise constitute a defense available to, or
a discharge of Borrower in respect of, the Obligations.
5. Authorizations to Lender. Guarantor authorizes Lender,
without notice or demand and without affecting Guarantor's liability hereunder,
from time to time (a) to renew, extend, accelerate or otherwise change the time
for payment of, change, amend, alter, cancel, compromise or otherwise modify
the terms of the Note, including increasing the rate or rates of interest
thereunder agreed to by Borrower, and to grant any indulgences, forbearances,
or extensions of time; (b) to renew, extend, change, amend, alter, cancel,
compromise or otherwise modify any of the terms, covenants, conditions or
provisions of any of the Loan Documents or any of the Obligations; (c) to apply
any security and direct the order or manner of sale thereof as Lender, in
Lender's sole and absolute discretion, may determine; (d) to proceed against
Borrower or Guarantor without first foreclosing against any security therefor;
(e) to exchange, release, surrender, impair or otherwise deal in any manner
with, or waive, release or subordinate any security interest in, any security
for the Obligations; (f) to release or substitute Borrower, or other parties
who may be or become liable with respect to the Obligations, without any
release being deemed made of Guarantor or any other such person; and (g) to
accept a conveyance or transfer to Lender of all or any part of any security in
partial satisfaction of the Obligations, or any of them, without releasing
Borrower, Guarantor,
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endorser or other party who may be or become liable with respect to the
Obligations, from any liability for the balance of the Obligations.
6. Application of Payments Received by Lender. Any sums of money
Lender receives from or for the account of Borrower shall be applied by Lender
to reduce any of the Obligations or any other liability of Borrower to Lender,
as Lender in Lender's discretion deems appropriate.
7. Waivers by Guarantor. In addition to all waivers expressed in
any of the Loan Documents, all of which are incorporated herein by Guarantor,
Guarantor hereby waives (a) presentment, demand, protest and notice of protest,
notice of dishonor and of non-payment, notice of acceptance of this Guaranty,
and diligence in collection; (b) notice of the existence, creation, or
incurring of any new or additional Obligations under or pursuant to any of the
Loan Documents; (c) any right to require Lender to proceed against, give notice
to, or make demand upon Borrower; (d) any right to require Lender to proceed
against or exhaust any security or to proceed against or exhaust any security
in any particular order; (e) any right to require Lender to pursue any remedy
of Lender; (f) any right to direct the application of any security held by
Lender; (g) any right of subrogation or to enforce any remedy which Lender may
have against Borrower and any right to participate in any security now or
hereafter held by Lender and any right to reimbursement from the Borrower for
amounts paid to Lender by Guarantor; (h) benefits, if any, of Guarantor under
any anti-deficiency statutes or single-action legislation; (i) any defense
arising out of any disability or other defense of Borrower, including
bankruptcy, dissolution, liquidation, cessation, impairment, modification, or
limitation, from any cause, of any liability of Borrower, or of any remedy for
the enforcement of such liability; (j) any statute of limitations affecting the
liability of Guarantor hereunder; (k) any right to plead or assert any election
of remedies by Lender; and (l) any other defenses available to a surety under
applicable law.
8. Jurisdiction and Venue. Guarantor hereby submits itself to
the jurisdiction and venue of any federal or state court located in Columbia,
South Carolina in connection with any action or proceeding brought for
enforcement of Guarantor's obligations hereunder, and hereby waives any and all
personal or other rights under the law of any other country or state to object
to jurisdiction within Columbia, South Carolina for purposes of litigation to
enforce such obligations.
9. Assignability. This Guaranty shall be binding upon Guarantor
and Guarantor's heirs, representatives, successors, and assigns and shall inure
to the benefit of Lender and Lender's successors and assigns. This Guaranty
shall follow the Note and other Loan Documents which are for the benefit of
Lender, and, in the event the Note and other Loan Documents are negotiated,
sold, transferred, assigned, or conveyed by Lender in whole or in part, this
Guaranty shall be deemed to have been sold, transferred, assigned, or conveyed
by Lender to the holder or holders of the Note and other Loan Documents, with
respect to the Obligations contained therein, and such holder or holders may
enforce this Guaranty as if such holder or holders had been originally named as
Lender hereunder.
10. Reinstatement of Obligations. If at any time all or any part
of any payment made by Guarantor or received by Lender from Guarantor under or
with respect to this Guaranty is or must be rescinded or returned for any
reason whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of any Guarantor), then the obligations of Guarantor hereunder
shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence, notwithstanding such previous payment made by
Guarantor, or receipt of payment by Lender, and the obligations of Guarantor
hereunder shall continue to be effective or be reinstated, as the case may be,
as to such payment, all as though such previous payment by Guarantor had never
been made.
11. Payment of Costs of Enforcement. In the event any action or
proceeding is brought to enforce this Guaranty, Guarantor shall pay all costs
and expenses of Lender in connection with such action or proceeding, including,
without limitation, all reasonable attorneys' fees and expenses actually
incurred by Lender.
12. Notices. Any notice required or permitted to be given by
Guarantor or Lender under this Guaranty shall be in writing and will be deemed
given (a) upon personal delivery, (b) on the first business
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day after receipted delivery to a courier service which guarantees
next-business-day delivery, or (c) on the third business day after mailing, by
registered or certified United States mail, postage prepaid, in any case to the
appropriate party at its address set forth below:
If to Guarantor:
Indus International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel and Chief Financial Officer
If to Lender:
New Small Research, LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Small
Either party may change such party's address for notices or copies of notices
by giving notice to the other party in accordance with this Section .
13. Severability of Provisions. If any provision hereof or of any
other Loan Document shall, for any reason and to any extent, be invalid or
unenforceable, then the remainder of the document in which such provision is
set forth, the application of the provision to other persons, entities or
circumstances, and any other document referred to herein shall not be affected
thereby but instead shall be enforceable to the maximum extent permitted by
law.
14. Waiver. Neither the failure of Lender to exercise any right
or power given hereunder or to insist upon strict compliance by Borrower,
Guarantor, any other guarantor, or any other person with any of its obligations
set forth herein or in any of the Loan Documents, nor any practice of Borrower
or Guarantor at variance with the terms hereof or of any Loan Documents, shall
constitute a waiver of Lender's right to demand strict compliance with the
terms and provisions of this Guaranty.
15. Certain Waivers. GUARANTOR, BY SIGNING THIS GUARANTY, AND
LENDER, BY ACCEPTING IT, EACH KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS GUARANTY, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER
AND GUARANTOR ENTERING INTO THE SUBJECT LOAN TRANSACTION.
16. Construction. All pronouns and any variations of pronouns
herein shall be deemed to refer to the masculine, feminine, or neuter, singular
or plural, as the identity of the parties may require. Whenever the terms
herein are singular, the same shall be deemed to mean the plural, and vice
versa, as the identity of the parties or where the context requires.
17. Applicable Law. This Guaranty and the rights and obligations
of the parties hereunder shall be governed by and interpreted in accordance
with the laws of the State of South Carolina.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year
first above written.
GUARANTOR:
Indus International, Inc., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Its: Executive Vice President and
Chief Financial Officer
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