Exhibit 10.2
MASTER UNLIMITED GUARANTY
MASTER UNLIMITED GUARANTY, ("Guaranty") dated as of September 29, 2006 by
each of DYNAMICS RESEARCH CORPORATION, a Massachusetts corporation, DRC
INTERNATIONAL CORPORATION, a Massachusetts corporation, and X.X. XXXX
ASSOCIATES, INC., a Delaware corporation (hereinafter, singly a "Guarantor" and
collectively, the "Guarantors"), in favor of XXXXX BROTHERS XXXXXXXX & CO., a
New York general partnership with offices at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, for itself and as Administrative Agent (the "Agent") for each of
the Lenders (defined below) which are and which may become parties to the Loan
Agreement (defined below). All capitalized terms used herein, and not otherwise
defined herein, shall have the meanings set forth in the Loan Agreement. In
consideration of the Agent's and the Lenders' giving, in their discretion,
credit or banking facilities or accommodations to each of those persons
described on Exhibit A annexed hereto and incorporated herein by reference (each
such person, together with its successors, individually a "Customer" and
collectively, the "Customers"), each Guarantor jointly and severally agrees as
follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor, jointly and severally
hereby guarantees to the Agent and each Lender the full and punctual
payment when due (whether at maturity, by acceleration or otherwise), and
the performance, of all Liabilities of any Customer to the Agent or to any
Lender in connection with that certain Third Amended and Restated Loan
Agreement dated as of even date herewith (as same may be amended, modified
or replaced, the "Loan Agreement"), made by and among the Customers, the
Agent, TD Banknorth, N.A., as Documentation Agent and Bank of America,
N.A., as Syndication Agent, and each of Xxxxx Brothers Xxxxxxxx & Co., TD
Banknorth, N.A. and Bank of America, N.A., as lenders, and such other
lenders which may hereafter become parties to the Loan Agreement (each a
"Lender" and collectively, the "Lenders"). This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of the Liabilities and not of their collectibility only and is
in no way conditioned upon any requirement that the Agent first attempt to
collect any of the Liabilities from any Customer or resort to any security
or other means of obtaining their payment. Upon the occurrence and
continuance of any Event of Default, the obligations of the Guarantor
hereunder shall become immediately due and payable to the Agent and the
Lenders, without demand or notice of any nature, all of which are expressly
waived by each Guarantor. Payments by any Guarantor hereunder may be
required by the Agent on any number of occasions.
2. GUARANTORS' AGREEMENT TO PAY. Each Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the Agent for the
ratable benefit of the Lenders, on demand, all costs and expenses
(including court costs and legal expenses) incurred or expended by the
Agent in connection with the Liabilities, this Guaranty and
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the enforcement thereof, together with interest on amounts recoverable
under this Guaranty from the time such amounts become due until payment, at
the rate per annum equal to the default rate set forth in the Loan
Agreement applicable to the Liabilities after the occurrence and
continuance of any Event of Default; provided that if such interest exceeds
the maximum amount permitted to be paid under applicable law, then such
interest shall be reduced to such maximum permitted amount.
3. UNLIMITED GUARANTY. The liability of each Guarantor hereunder shall be
unlimited.
4. WAIVERS BY GUARANTORS; AGENT'S FREEDOM TO ACT. Each Guarantor agrees that
the Liabilities will be paid and performed strictly in accordance with
their respective terms regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent with respect thereto. Each Guarantor waives
presentment, demand, protest, notice of acceptance, notice of Liabilities
incurred and all other notices of any kind, all defenses which may be
available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of
assets of the Customers, and all suretyship defenses generally. Without
limiting the generality of the foregoing, each Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Liability and agrees that the obligations of the
Guarantors hereunder shall not be released or discharged, in whole or in
part, or otherwise affected by (i) the failure of the Agent to assert any
claim or demand or to enforce any right or remedy against any Customer;
(ii) any extensions or renewals of any Liability; (iii) any rescissions,
waivers, amendments or modifications of any of the terms or provisions of
any agreement evidencing, securing or otherwise executed in connection with
any Liability; (iv) the substitution or release of any entity primarily or
secondarily liable for any Liability; (v) the adequacy of any rights the
Agent or any Lender may have against any collateral or other means of
obtaining repayment of the Liabilities; (vi) the impairment of any
collateral securing the Liabilities, including without limitation the
failure to perfect or preserve any rights the Agent might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of the Guarantor
or otherwise operate as a release or discharge of the Guarantor, all of
which may be done without notice to the Guarantor.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST CUSTOMERS. If for any reason any
Customer has no legal existence or is under no legal obligation to
discharge any of the Liabilities, or if any of the Liabilities have become
irrecoverable from any Customer by operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantors to
the same extent as if the Guarantors at all times had been
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the principal obligor on all such Liabilities. In the event that
acceleration of the time for payment of the Liabilities is stayed upon the
insolvency, bankruptcy or reorganization of any Customer, or for any other
reason, all such amounts otherwise subject to acceleration under the terms
of any agreement evidencing, securing or otherwise executed in connection
with any Liability shall be immediately due and payable by the Guarantors.
6. SUBROGATION; SUBORDINATION. No Guarantor shall exercise any rights against
any Customer or any other Guarantor arising as a result of payment by any
Guarantor hereunder, by way of subrogation or otherwise, and will not prove
any claim in competition with the Agent or any Lender or its affiliates in
respect of any payment hereunder in bankruptcy or insolvency proceedings of
any nature; no Guarantor will claim any set-off or counterclaim against any
Customer in respect of any liability of the Guarantors to any Customer or
any other Guarantor; and each Guarantor waives (until the Agent and each
Lender is paid in full) any benefit of and any right to participate in any
collateral which may be held by the Agent or any such affiliate. The
payment of any amounts due with respect to any indebtedness of any Customer
now or hereafter held by any Guarantor is hereby subordinated to the prior
payment in full of the Liabilities, provided that so long as no default in
the payment or performance of the Liabilities has occurred and is
continuing, or no demand for payment of any of the Liabilities has been
made that remains unsatisfied, the Customers may make and the Guarantors
may receive payments or performance of any obligations to Guarantors which
are permitted under the Loan Agreement. Each Guarantor agrees that after
the occurrence and during the continuance of any default in the payment or
performance of the Liabilities, no Guarantor will demand, xxx for or
otherwise attempt to collect any such indebtedness of any Customer to any
Guarantor until the Liabilities shall have been paid in full. If,
notwithstanding the foregoing sentence, any Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by such Guarantor as
trustee for the Agent and be paid over to the Agent on account of the
Liabilities without affecting in any manner the liability of such Guarantor
under the other provisions of this Guaranty.
7. SECURITY; SET-OFF. Regardless of the adequacy of any Collateral, during the
continuance of any Event of Default, any deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or
the branch of where such deposits are held) or other sums credited by or
due from any of the Lenders to any of the Guarantors and any securities or
other property of the Guarantors in the possession of such Lender may be
applied to or set off against the payment of Liabilities and any and all
other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of the Guarantors to the
Lenders. Each Lender, by its acceptance of this Guaranty, hereby agrees
that any payment received by Lender
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hereunder shall be subject to the terms and conditions set forth in Section
12-11 of the Loan Agreement.
8. FURTHER ASSURANCES. Each Guarantor also agrees to do all such things and
execute all such documents, including financing statements, as the Agent
may consider necessary or desirable to give full effect to this Guaranty
and to perfect and preserve the rights and powers of the Agent hereunder.
In addition, each Guarantor agrees that it will not incur any indebtedness,
other than any indebtedness permitted under the Loan Agreement.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force and
effect until the Agent is given written notice of the Guarantors' intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Liabilities. No such
notice shall be effective unless received and acknowledged by an officer of
the Agent at the address provided for in Article 10 of the Loan Agreement.
No such notice shall affect any rights of the Agent or any Lender or of any
affiliate hereunder including, without limitation, the rights set forth in
Sections 4 and 6, with respect to Liabilities incurred prior to the receipt
of such notice or Liabilities incurred pursuant to any contract or
commitment in existence prior to such receipt, and all checks, drafts,
notes, instruments (negotiable or otherwise) and writings made by or for
the account of the Customers and drawn on the Agent or any Lender or any of
their agents purporting to be dated on or before the date of receipt of
such notice, although presented to and paid or accepted by the Agent or
such Lender after that date, shall form part of the Liabilities. This
Guaranty shall continue to be effective or be reinstated, notwithstanding
any such notice, if at any time, any payment made or value received with
respect to a Liability is rescinded or must otherwise be returned by the
Agent or any Lender upon the insolvency, bankruptcy or reorganization of
any Customer, or otherwise, all as though such payment had not been made or
value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each Guarantor,
its respective successors and assigns, and shall inure to the benefit of
and be enforceable by the Agent and its successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, (i) the
Agent or any Lender may, to the extent permitted by such agreement or note,
assign or otherwise transfer any agreement or any note held by it
evidencing, securing or otherwise executed in connection with the
Liabilities, or sell participations in any interest therein, to any other
person or entity, and (ii) such other person or entity shall thereupon
become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all the rights in respect
thereof granted to the Agent and such Lender herein.
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11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent
pursuant to the provisions of the Loan Agreement. No failure on the part of
the Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise thereof or
the exercise of any other right.
12. NOTICES. All notices and other communications called for hereunder shall be
made in writing and, unless otherwise specifically provided herein, shall
be deemed to have been duly made or given when delivered by in accordance
with the provisions of Article 10 of the Loan Agreement.
13. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty is intended to take
effect as a sealed instrument and shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts. Each
Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of The Commonwealth of Massachusetts or any Federal
Court sitting therein, consents to the non-exclusive jurisdiction of such
court and agrees that a summons and complaint commencing an action or
proceeding in any such court shall be properly served and shall confer
personal jurisdiction if served personally or by certified mail to such
Guarantor at its address provided in Article 10 of the Loan Agreement or as
otherwise provided under the laws of The Commonwealth of Massachusetts.
Each Guarantor hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit was
brought in an inconvenient court.
14. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
Guarantors with respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in
addition to any other guaranty of the Liabilities. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not
affect the validity or enforceability of its remaining provisions. Captions
are for the ease of reference only and shall not affect the meaning of the
relevant provisions. The meanings of all defined terms used in this
Guaranty shall be equally applicable to the singular and plural forms of
the terms defined.
15. JURY WAIVER. THE AGENT (BY ITS ACCEPTANCE HEREOF) AND EACH GUARANTOR AGREE
THAT NONE OF THEM, INCLUDING ANY ASSIGNEE OR SUCCESSOR SHALL SEEK A JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON, OR ARISING OUT OF, THIS GUARANTY, ANY RELATED
INSTRUMENTS, ANY
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COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF
THEM. NEITHER THE AGENT NOR ANY GUARANTOR SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED
BY THE AGENT AND THE GUARANTORS, AND THESE PROVISIONS SHALL BE SUBJECT TO
NO EXCEPTIONS. NEITHER THE AGENT NOR ANY GUARANTOR HAS AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES.
16. AMENDED AND RESTATED GUARANTY. This Guaranty amends and restates any
Guaranty executed and delivered previously by any Guarantor in connection
with the Existing Loan Agreement.
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IN WITNESS WHEREOF, each Guarantor has executed and delivered this
Guaranty, or caused this Guaranty to be executed and delivered by its duly
authorized officer, as of the date appearing on page one.
DYNAMICS RESEARCH
WITNESS (as to all): CORPORATION
By:
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Name: Xxxxx Xxxxxxx
Title: Senior Vice President - Finance,
CFO and Treasurer
DRC INTERNATIONAL CORPORATION
By:
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Name: Xxxxx Xxxxxxx
Title: Vice President - Finance and CFO
X.X. XXXX ASSOCIATES, INC.
By:
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Name: Xxxxx Xxxxxxx
Title: Treasurer, CFO and Assistant
Secretary
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Annex A
DYNAMICS RESEARCH CORPORATION, a Massachusetts corporation
DRC INTERNATIONAL CORPORATION, a Massachusetts corporation
X.X. XXXX ASSOCIATES, INC., a Delaware corporation
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