THIS DOCUMENT IS A COPY OF THE EXHIBIT FILED ON OCTOBER 24, 1996
PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
AMENDED AND RESTATED
UNLIMITED CONTINUING GUARANTY
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AMENDED AND RESTATED UNLIMITED CONTINUING GUARANTY, ("Guaranty") dated the
10th day of October, 1996, made by SAI/DELTA, INC. (the "Guarantor"), a Florida
Corporation, in favor of XXXXXX X. XXXXXXX XX (the "Lender") whose address is
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx.
WHEREAS, Delta Computec, Inc. and Delta Data Net, Inc. (collectively,
"Borrower") and National Canada Finance Corp. ("NCFC") entered into a certain
Credit Agreement dated as of April 1, 1994, as amended by Credit Agreement
Amendment No. 1 dated November 17, 1994, Credit Agreement Amendment No. 2 dated
January 24, 1995, Credit Agreement Amendment No. 3 dated April 3, 1995, Credit
Agreement Amendment No. 4 dated May 1, 1995 and Credit Agreement Amendment No. 5
dated October 27, 1995 (as amended, the "Credit Agreement");
WHEREAS, Borrower executed and delivered to NCFC a Promissory Note dated
April 1, 1994, as amended and restated by an Amended and Restated Promissory
Note dated May 1, 1995 and as further amended and restated by a Third Amended
and Restated Promissory Note dated October 27, 1995 (as amended and restated,
the "Promissory Note");
WHEREAS, Guarantor is a wholly owned subsidiary of the Borrower;
WHEREAS, on March ___, 1995, Guarantor executed and delivered to NCFC its
Continuing Unlimited Guaranty (the "Guaranty") pursuant to which it guarantied
all of the obligations of Borrower to NCFC under the Credit Agreement and the
Promissory Note;
WHEREAS, on the date hereof, NCFC is assigning to the Lender all but
$750,000 of the indebtedness owed to NCFC by Borrower evidenced by the Credit
Agreement and the Promissory Note and all of its right, title and interest in
certain ocuments executed in connection with the Credit Agreement and the
Promissory Note, including all of its right, title and interest in the Guaranty;
WHEREAS, on the date hereof the Lender and the Borrower are amending and
restating the Credit Agreement (as amended and restated, the "Amended and
Restated Credit Agreement") and the Promissory Note (as amended and restated,
the "Amended and Restated Promissory Note") as such documents relate to the
indebtedness assigned by NCFC to Lender; and
WHEREAS, Lender and the Guarantor desire to amend and restate the Guaranty;
Page 182 of 207 Pages
NOW, THEREFORE, the Guarantor hereby unconditionally guarantees to Lender
the full and prompt payment when due of all sums at any time owing by, and the
punctual performance of all liabilities and obligations of, the Borrower to the
Lender, now existing or hereafter arising, under the Amended and Restated Credit
Agreement and the Amended and Restated Promissory Note or in connection with any
transaction occurring pursuant thereto, however and whenever created, whether
primary or secondary, joint or several, absolute, contingent, or conditional,
due or to become due.
1. The Guarantor shall be liable to Lender for all reasonable attorneys'
and paralegals' fees and expenses reasonably incurred, if any action or
proceeding is brought to enforce this Amended and Restated Unlimited Continuing
Guaranty or if any claim hereunder is referred to an attorney for collection.
2. This Amended and Restated Unlimited Continuing Guaranty is a primary
obligation of the Guarantor. The liability of the Guarantor hereunder is direct
and may be enforced without requiring Lender first to resort to any other right,
remedy or security. Nothing shall discharge or satisfy the liability of the
Guarantor hereunder except the full payment and performance of all of the
obligations hereby guaranteed, with interest (as provided in the Amended and
Restated Credit Agreement) until fully paid. This Amended and Restated Unlimited
Continuing Guaranty shall not be impaired or affected by, nor shall the
Guarantor have any defense hereto based upon: (a) any modification, supplement,
extension, or amendment of any contract or agreement to which the parties
thereto may hereafter agree (including, without limitation, any modification,
supplement, extension, or amendment that has the effect of increasing the
outstanding or maximum amount of the obligations hereby guaranteed); (b) any
modification, release or other alteration of any of the obligations hereby
guaranteed or of any security therefore; (c) any agreement or arrangement
whatsoever with the Guarantor or anyone else; (d) any failure of Lender to
perfect its security interest in and liens on, or to preserve its rights to, any
collateral; or (e) the validity, legality, regularity, or enforceability of any
of the obligations hereby guaranteed, or of the Amended and Restated Credit
Agreement or any other agreement or instrument relating to the obligations
hereby guaranteed. This Amended and Restated Unlimited Continuing Guaranty is a
continuing guaranty which shall remain effective during the term of the Amended
and Restated Credit Agreement, and any renewal, replacement or restatement
thereof, and until all obligations hereby guaranteed have been paid in full. The
death, dissolution, liquidation, merger, consolidation, or other change of form
of the Guarantor or any other guarantor of the obligations hereby guaranteed
shall not cause the termination of this Amended and Restated Unlimited
Continuing Guaranty. Any
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releases which may be given by Lender to any one or more other guarantors of the
obligations hereby guaranteed shall not release the Guarantor from this Amended
and Restated Unlimited Continuing Guaranty. Termination by any other guarantor
of any guaranty of the obligations hereby guaranteed shall not affect the
continuing liability of the Guarantor hereunder.
3. Lender's books and records showing the accounts between Lender and the
Guarantor shall be admissible in any action or proceeding and shall constitute
prima facie proof thereof.
4. All rights of the Guarantor to subrogation, reimbursement or indemnity
of any kind, or to recourse to security for the debts and obligations to Lender,
arising from payment by the Guarantor hereunder, are hereby subrogated to the
rights of Lender under this Amended and Restated Unlimited Continuing Guaranty
until all Obligations (as such term is defined in the Amended and Restated
Credit Agreement) of Borrower to Lender are paid in full.
5. All sums at any time to the credit of the Guarantor and any property of
the Guarantor at any time in the possession of Lender or any affiliate may be
held by Lender or such affiliate as security for any and all obligations of the
Guarantor to Lender, no matter how or when arising, whether absolute or
contingent, whether due or to become due and whether under this Amended and
Restated Unlimited Continuing Guaranty or the Amended and Restated Credit
Agreement, and the Amended and Restated Promissory Note and other documents
relating thereto. In addition, whenever the obligations hereby guaranteed, or
any part thereof, are due and payable by the Guarantor, then Lender or any
affiliate may without prior notice to or demand on the Guarantor, elect in its
sole discretion to set off against the obligations hereby guaranteed any and all
moneys then or thereafter owed to the Guarantor by Lender or such affiliate,
whether or not the indebtedness or the obligation to pay such moneys is then
due. Lender or such affiliate shall be deemed to have exercised this right
immediately at the time of its election even through any charge therefor is made
or entered on Lender's or such affiliate's records subsequent to that time. All
reasonable costs and expenses, including, without limitation, attorneys' and
paralegals' fees (based on hours expended at standard hourly billing rates) paid
or incurred by Lender or such affiliate in connection with any such setoff shall
be paid by the Guarantor upon demand.
6. All payments by the Guarantor pursuant to this Amended and Restated
Unlimited Continuing Guaranty shall be made to Lender at the address for
payments specified in the Amended and Restated Credit Agreement. Any payment
received by Lender from the Guarantor shall be applied Lender as follows:
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Page 184 of 207 Pages
First, to the payment of the reasonable costs and expenses of collection
and all expenses (including, without limitation, any reasonable legal fees
and disbursements and the allocated costs of in-house counsel), liabilities
and advances made or incurred by Lender in connection therewith;
Next, to Lender in accordance with the Amended and Restated Credit
Agreement until all Obligations shall have been indefeasibly paid in full;
and
Finally, after payment in full of all Obligations and the termination of
the Amended and Restated Credit Agreement, to the payment to the Guarantor,
or its respective successors or assigns, or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.
7. Upon the occurrence of an Event of Default as provided in the Amended
and Restated Credit Agreement, Lender may proceed to enforce this Amended and
Restated Unlimited Continuing Guaranty against the Guarantor.
8. The Guarantor represents and warrants that it has adequate means to
obtain on a continuing basis information concerning the financial condition and
operating of the Borrower, and that it is not relying on Lender to provide such
information at any time.
9. The Guarantor acknowledges and agrees that it has received and expects
to continue to receive material benefits as a result of entering into this
Amended and Restated Unlimited Continuing Guaranty and the transactions
contemplated by the Credit Agreement. If, however, a court of competent
jurisdiction finally determines that, a to the Guarantor, the creation or the
enforcement of this Amended and Restated Unlimited Continuing Guaranty to any
extent constitutes a fraudulent transfer under applicable law, then this Amended
and Restated Unlimited Continuing Guaranty shall thereupon be deemed modified so
that the liability of the Guarantor under this Amended and Restated Unlimited
Continuing Guaranty shall be limited to the maximum amount for which this
Amended and Restated Unlimited Continuing Guaranty could be enforced without
constituting a fraudulent transfer by the Guarantor.
10. If, after receipt of any payment of all or any part of the obligations
hereby guaranteed, Lender is for any reason compelled to refund or surrender
such payment to any person or entity, because such payment is determined to be
void or voidable as a preference, impermissible setoff, or a diversion of trust
funds, or based on any claim of breach of contract, breach of warranty,
illegality, invalidity, or fraud, or for any
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other reason, then this Amended and Restated Unlimited Continuing Guaranty and
the obligations intended to be paid by such payment shall be reinstated, if
necessary, and shall continue in full force notwithstanding any contrary action
which may have been taken by Lender in reliance upon such payment. Any such
contrary action so taken shall be without prejudice to Lender's rights under
this Amended and Restated Unlimited Continuing Guaranty and shall be deemed to
have been conditioned upon such payment having become final and irrevocable.
Lender may defend, compromise, or pay any such claim to recover such payment as
it elects in its sole discretion. The provisions of this paragraph shall survive
the termination of this Amended and Restated Unlimited Continuing Guaranty.
11. No election by Lender to proceed in one form of action or proceeding,
or against any party, or on any obligation, shall constitute a waiver of
Lender's right to proceed in any other form of action or proceeding or against
any other form of action or obligation. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Lender against the
Guarantor under any document or instrument evidencing or securing indebtedness
of the Guarantor to Lender shall serve to diminish the liability of the
Guarantor hereunder, except to the extent Lender realizes payment by such action
or proceeding. The Guarantor hereby waives any defense based upon an election of
remedies by Lender with respect to any property of the Guarantor or any other
person which now or hereafter secures the obligations of the Guarantor to
Lender, including but not limited to judicial foreclosure, exercise of power of
sale or taking a deed or assignment in lieu of foreclosure as to any collateral,
and the Guarantor shall be liable to Lender for any deficiency resulting from
the exercise by Lender of any such remedy, even though any right of subrogation,
reimbursement, or other right which the Guarantor may have against others might
be diminished or destroyed. The Guarantor agrees that Lender shall not be under
any obligation to marshal any assets in favor of the Guarantor or against or in
payment of any or all of the obligations hereby guaranteed.
12. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE GUARANTOR WAIVES:
NOTICE OF ACCEPTANCE OF This Amended and Restated Unlimited Continuing Guaranty;
THE RIGHT TO A JURY TRIAL IN ANY ACTION HEREUNDER OR ARISING OUT OF LENDER'S
TRANSACTIONS WITH THE GUARANTOR, AND THE RIGHT TO ASSERT DEFENSES OTHER THAN
PAYMENT, SETOFFS, AND COUNTERCLAIMS IN ANY SUCH ACTION; PRESENTMENT, DEMAND,
PROTEST AND NOTICE OF DEMAND, DISHONOR, AND PROTEST AS TO ANY INSTRUMENT; NOTICE
OF DEFAULT; NOTICE OF ANY AND ALL FAVORABLE AND UNFAVORABLE INFORMATION,
FINANCIAL OR OTHER, ABOUT THE GUARANTOR HERETOFORE, NOW OR HEREAFTER LEARNED OR
ACQUIRED BY LENDER; AND ALL OTHER NOTICES TO WHICH THE GUARANTOR MIGHT OTHERWISE
BE ENTITLED. THE GUARANTOR CONFIRMS THAT THE FOREGOING WAIVER IS INFORMED AND
VOLUNTARY.
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13. The Guarantor hereby represents and warrants that: (a) it has the
corporate power and authority to execute, deliver, and perform this Amended and
Restated Unlimited Continuing Guaranty; (b) it has taken all necessary corporate
action (including without limitation, obtaining any required approval of its
stockholders) to authorize its execution, delivery, and performance of this
Amended and Restated Unlimited Continuing Guaranty; (c) no consent, approval, or
authorization of, or filing with, any governmental authority, and on consent of
any other person, is required in connection with its execution, delivery, and
performance of this Amended and Restated Unlimited Continuing Guaranty, except
for those already duly obtained or made; (d) this Amended and Restated Unlimited
Continuing Guaranty has been duly executed and delivered by the Guarantor and
constitutes its legal, valid, and binding obligation, enforceable against it in
accordance with its terms without defense, setoff, or counterclaim; and (e) the
Guarantor's execution, delivery, and performance of this Amended and Restated
Unlimited Continuing Guaranty do not and will not conflict with, or constitute a
violation or breach of, or constitute a default under, or result in the creation
or imposition of any lien or encumbrance upon this property of the Guarantor
(except as contemplated by this Amended and Restated Unlimited Continuing
Guaranty) by reason of the terms of (i) any mortgage, lease, agreement, or
instrument to which it is a party or which is binding upon it, (ii) any
judgment, law, statute, rule, or governmental regulation applicable to it, or
(iii) its Certificate or Articles of Incorporation or By-Laws.
14. This Amended and Restated Unlimited Continuing Guaranty shall be
binding upon the Guarantor's successors and assigns. Upon any assignment by
Lender of its rights and obligations, or any part thereof, in accordance with
the Amended and Restated Credit Agreement, such assignee shall become vested
with Lender's rights and benefits hereunder to the extent of such assignment.
15. All acts and transactions hereunder and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of New York, except that no doctrine of choice of law
shall be used to apply the laws of any other state or jurisdiction.
16. This Amended and Restated Unlimited Continuing Guaranty constitutes the
entire agreement of the Guarantor and Lender with respect to the subject matter
hereof, and represents a restatement and replacement of the Guaranty in its
entirety. This Amended and Restated Unlimited Continuing Guaranty may not be
modified, nor may any provision hereof or the observance thereof by waived,
except in a written agreement signed by the Guarantor and Lender.
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17. The Guarantor agrees that, in addition to any other courts that may
have jurisdiction under applicable law and rules, the Supreme Court of the State
of New York in the County of Erie, and the United Stated District Court for the
Western District of New York shall each have jurisdiction to hear and determine
any claims or disputes pertaining directly or indirectly to this Amended and
Restated Unlimited Continuing Guaranty or to any matter arising herefrom. The
Guarantor expressly submits and consents, in advance, to such jurisdiction in
any action or proceeding in such courts, and agrees that venue shall be proper
in such courts for all such matters, hereby waiving personal service of the
summons and complaint, or other process or papers issued therein, and agreeing
that service of such summons or complaint or other process or papers may be made
by registered or certified mail (return receipt requested) addressed to it at
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, or at such other address of
which it shall have notified Lender in writing.
18. Notwithstanding anything to the contrary in this Amended and Restated
Unlimited Continuing Guaranty, Lender may exercise all rights and remedies
provided for herein and by law.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Unlimited Continuing Guaranty the date first above written.
SAI/DELTA, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxx XX
----------------------------------
XXXXXX X. XXXXXXX XX
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Page 188 of 000 Xxxxx
XXXXX XX XXX XXXX )
COUNTY OF MONROE ) SS.:
On this 10th day of October, 1996, before me personally came
___________________________________, to me known, who, being by me duly sworn,
did depose and say that he resides in
____________________________________________, that he is the _____________ of
SAI/DELTA, INC., the corporation described in and which executed the above
instrument; that he signed his name thereto by order of the Board of Directors
of said corporation.
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Notary Public
STATE OF NEW YORK )
COUNTY OF MONROE ) ss.:
On this 10th day of October 1996 before me personally came XXXXXX X.
XXXXXXX XX, to me personally known and known to me to be the same person
described in and who executed the foregoing instrument, and he acknowledged to
me that he executed the same.
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Notary Public
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