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EXHIBIT 10.44
AMENDED AND RESTATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT, dated as of February
____, 1997 (the "Guaranty"), is given by LASON, INC., a Delaware corporation
(the "Guarantor"); and is extended to
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national banking
association with its principal offices in Charlotte, North Carolina ("First
Union"), in its capacity as agent (the "Agent") for the Lenders as that term is
defined in the Loan Agreement referred to below, and the Lenders (the Agent and
the Lenders, together with successors and assigns, individually a "Guaranteed
Party" and collectively, the "Guaranteed Parties") for the benefit of
LASON SYSTEMS, INC., a Delaware corporation (the "Borrower").
RECITALS:
A. The Lenders have agreed to make certain loans in the aggregate
principal amount of up to $40,000,000, which amount may be increased to
$60,000,000 (the "Loans"), to the Borrower pursuant to an Amended and Restated
Loan Agreement dated as of the date hereof (as amended, modified, supplemented
or restated from time to time, the "Loan Agreement"), between the Borrower, the
Lenders and the Agent, the terms, conditions and provisions of which are
incorporated herein by reference. Capitalized terms that are not defined
herein shall have the meanings assigned to such terms in the Loan Agreement.
The Loans are evidenced by promissory notes dated as of the date hereof in the
aggregate principal amount of up to $40,000,000 and may be further evidenced by
promissory notes in the aggregate principal amount of $20,000,000
(collectively, as amended, modified, supplemented, substituted or restated from
time to time, the "Notes").
B. The Guarantor is a 100% shareholder of the Borrower. The
Borrower and the Guarantor operate as a single business enterprise. Although
they are separate corporate entities, and each is adequately capitalized and
maintains all corporate formalities, the Borrower and the Guarantor operate
under a shared business plan and with a combined effort.
C. The Lenders have required, as a condition to making the Loans,
among other things, that the Guarantor guarantee to the Guaranteed Parties the
payment of the Obligations, as defined in the Loan Agreement, including without
limitation all amounts due and payable under the Notes, and that such guaranty
be secured by a pledge by the Guarantor to the Agent, for the benefit of the
Lenders, of all of the issued and outstanding capital stock of the Borrower
pursuant to the terms of the Amended and Restated Guarantor Pledge Agreement
dated as of the date hereof between the
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Borrower and the Agent (as amended, modified, supplemented or restated from
time to time, the "Pledge Agreement"). Without this Guaranty the Lenders would
be unwilling to make the Loans to the Borrower.
D. Because of the direct benefit to the Guarantor from the Loans
to the Borrower, the Guarantor agrees to guarantee to the Guaranteed Parties
the Obligations of the Borrower as set forth herein.
NOW, THEREFORE, in consideration of the Agent's and the Lenders'
entering into the Loan Agreement and making the Loans to the Borrower:
1. Guaranty of Payment. The Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to the Guaranteed Parties the payment
and performance, when due, by stated maturity, acceleration or otherwise, of
the Obligations (as defined in the Loan Agreement). The obligations of the
Guarantor hereunder are referred to as the "Guaranty Obligations." The
guaranty of the Guarantor as set forth in this SECTION 1 is a guaranty of
payment and not of collection.
2. Subordination. Any Indebtedness of the Borrower to the Guarantor
now or hereafter existing, together with any interest thereon, including
without limitation any Indebtedness of the Borrower to the Guarantor in any
proceeding under the Bankruptcy Code, shall be, and such Indebtedness is
hereby, deferred, postponed and subordinated to the Obligations. As regards
any such Indebtedness, the Guarantor shall not, and shall not permit the
Borrower to, commit or allow the commission of any transfer, acceleration,
forgiveness, prepayment, modification, conversion or further subordination
without the express written consent of the Agent. If any such Indebtedness is
or becomes represented by any written instrument, such instrument shall
forthwith be endorsed and delivered to the Agent, for the benefit of the
Lenders. Notwithstanding the foregoing, the Borrower may make payments on any
such Indebtedness to the Guarantor provided no Default or Event of Default is
in existence at the time of any such payment or would result from such payment.
3. Release of Collateral, Parties Liable, etc. The Guarantor agrees
that the whole or any part of the security now or hereafter held for the
Obligations and the Guaranty Obligations may be exchanged, compromised, or
surrendered from time to time; that the Guaranteed Parties shall have no
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances now or hereafter held for the Obligations or the Guaranty
Obligations or the properties subject thereto; that the time or place of
payment of the Obligations and the Guaranty Obligations may be changed or
extended, in whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in
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part; that the Borrower may be granted indulgences generally; that any of the
provisions of the Loan Agreement, the Notes, the other Loan Documents, or any
other documents executed in connection with this transaction (other than this
Guaranty Agreement and the Pledge Agreement), may be modified, amended,
supplemented, restated or waived; that any party (including any co-Guarantor)
liable for the payment thereof may be granted indulgences or released; and that
any deposit balance for the credit of the Borrower, the Guarantor or any other
party liable for the payment of the Obligations or the Guaranty Obligations or
liable upon any security therefor may be released, in whole or in part, at,
before and/or after the stated, extended or accelerated maturity of the
Obligations or the Guaranty Obligations, all without notice to or further
assent by the Guarantor, who shall remain bound thereon, notwithstanding any
such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
4. Waiver of Rights. The Guarantor expressly waives: (a) notice of
acceptance of this Guaranty by the Guaranteed Parties and of all extensions of
credit to the Borrower by the Lenders; (b) presentment and demand for payment
of any of the Obligations or the Guaranty Obligations; (c) protest and notice
of dishonor or of default to the Guarantor or to any other party with respect
to the Obligations or the Guaranty Obligations or with respect to any security
therefor; (d) notice of the Guaranteed Parties' obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, liens
or encumbrances now or hereafter securing the Obligations or the Guaranty
Obligations, or the Guaranteed Parties' subordinating, compromising,
discharging or releasing such security interests, liens or encumbrances; (e) to
the extent permitted by applicable law, all other notices to which the
Guarantor might otherwise be entitled; (f) any requirement that the Guaranteed
Parties protect, secure, perfect or insure any security interest, lien or other
charge or encumbrance on any property; (g) demand for payment under this
Guaranty; and (h) any right to assert against any Guaranteed Party, as a
defense, counterclaim, set-off, or cross-claim, any defense (legal or
equitable), set-off, counterclaim or claim that the Guarantor may now or
hereafter have against any Guaranteed Party or the Borrower, other than
compulsory counterclaims. The Guarantor waives the benefit of any statute of
limitations affecting the Guarantor's liability hereunder or the enforcement
thereof.
5. Primary Liability of the Guarantor. The Guarantor agrees that this
Guaranty may be enforced by the Guaranteed Parties without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes or any collateral now
or hereafter securing the Obligations, the Guaranty Obligations or otherwise,
and Guarantor hereby waives the right to require the Guaranteed Parties to
proceed against the Borrower or any co-Guarantor or to require the Guaranteed
Parties to pursue any other remedy or enforce any other right. Without
limiting the generality of the
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foregoing, the Guarantor hereby specifically waives the benefits of N.C. Gen.
Stat. Sections 26-7 through 26-9 inclusive. The Guarantor further agrees that
nothing contained herein shall prevent the Guaranteed Parties from suing on the
Notes or foreclosing their security interest in or lien on any collateral now
or hereafter securing the Obligations or the Guaranty Obligations or from
exercising any other rights available to them under the Notes, the Loan
Agreement, the other Loan Documents or any other document or instrument
executed in connection with the Obligations or the Guaranty Obligations if
neither the Borrower nor the Guarantor timely perform thereunder, and the
exercise of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any of the Guarantor's Guaranty
Obligations hereunder; it being the purpose and intent of the Guarantor that
the Guarantor's Guaranty Obligations shall be absolute, independent and
unconditional under any and all circumstances. Neither the Guarantor's
Guaranty Obligations under this Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower or any co-Guarantor or by reason of the Borrower's or
any co-Guarantor's bankruptcy or insolvency. The Guarantor acknowledges that
the terms "Obligations" and "Guaranty Obligations" as used herein include any
payments made by the Borrower or the Guarantor to the Guaranteed Parties and
subsequently recovered by the Borrower or the Guarantor or a trustee for either
of them pursuant to the Borrower's or the Guarantor's bankruptcy or insolvency.
6. Security. The Guaranty Obligations are secured by perfected
and first-priority security interests in the Pledged Collateral (as defined in
the Pledge Agreement). The Guarantor agrees that in the event the Guarantor
fails to pay its obligations hereunder when due and payable under this
Guaranty, the Agent and each of the Lenders shall have all the rights and
remedies available under the Pledge Agreement immediately and without further
action by the Agent or any Lender.
7. Attorneys' Fees and Costs of Collection. If at any time or times
hereafter the Agent or any other Guaranteed Party employs counsel to pursue
collection, to intervene, to xxx for enforcement of the terms hereof or of the
Notes or other Loan Documents, or to file a petition, complaint, answer, motion
or other pleading in any suit or proceeding relating to this Guaranty, the
Pledge Agreement, the Notes or other Loan Documents, then in such event, all of
the reasonable attorneys' fees relating thereto shall be an additional
liability of the Guarantor to the Agent, payable on demand.
8. Term of Guaranty. This Guaranty shall continue in full force and
effect until the Obligations and Guaranty Obligations are fully paid, performed
and discharged, the Commitments of the Lenders under the Loan Agreement have
terminated, and any and all Swap Agreements have expired or have been cash
settled. This
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Guaranty covers the Obligations and the Guaranty Obligations whether presently
outstanding or arising subsequent to the date hereof including all amounts
advanced by the Lenders in stages or installments.
9. Representations and Warranties. As of the date hereof, the
Guarantor warrants and represents to the Guaranteed Parties as follows:
(a) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization; the Guarantor has the full power, authority and
legal right to execute, deliver and perform this Guaranty; and this Guaranty
has been duly and validly authorized by all necessary corporate action and is
binding upon and enforceable against the Guarantor, its successors and assigns
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 or
matters of public policy.
(b) There is no litigation, claim, action or proceeding
pending or, to the best knowledge of the Guarantor, threatened against the
Guarantor that would materially adversely affect the financial condition of the
Guarantor or its ability to fulfill its obligations hereunder.
(c) The execution, delivery and performance by the Guarantor
of this Guaranty, the Pledge Agreement and any other instrument executed by it
in connection herewith do not and will not (i) conflict with or result in any
breach of, or constitute with the passage of time or the giving of notice or
both, a default under, the certificate of incorporation or bylaws of the
Guarantor, any Requirement of Law, or any agreement to which the Guarantor is a
party or by which it or its properties is bound or (ii) result in the creation
or imposition of any Lien upon its properties, except for the lien created by
the Pledge Agreement.
(d) No authorization or consent of, or filing with, any
Governmental Authority is required for the execution, delivery and performance
by the Guarantor of this Guaranty.
(e) The Guarantor has timely paid all taxes and other charges
levied or assessed against it or its properties by any applicable Governmental
Authority unless such taxes or charges are being diligently contested by the
Guarantor by appropriate proceedings and the failure to pay such taxes and
charges timely does not materially and adversely affect the Guarantor. The
Guarantor has timely filed all tax returns required by law to be filed (or
extension requests with respect thereto have been filed and granted). To the
knowledge of the Guarantor, no material controversy in respect of taxes owed or
alleged to be owed by Guarantor is pending or threatened on the date hereof.
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(f) No event has occurred and is continuing that constitutes
an Event of Default hereunder or which, with the passage of time or giving of
notice or both, would constitute an Event of Default.
(g) Neither this Guaranty nor the Pledge Agreement contains
any untrue statement of a material fact or omits a material fact necessary to
make the statements contained therein or herein not misleading when taken as a
whole.
(h) The Guarantor is Solvent, and will not, as a result of
the transactions contemplated hereby, cease to be Solvent.
(i) All outstanding capital stock of the Borrower is fully
paid and is held of record by the Guarantor.
10. Further Representations and Warranties. The Guarantor further
represents to the Guaranteed Parties that the Guarantor has knowledge of the
Borrower's financial condition and affairs and represents and agrees that the
Guarantor will keep so informed while this Guaranty is in force. The Guarantor
agrees that the Guaranteed Parties will have no obligation to investigate the
financial condition or affairs of the Borrower for the benefit of the Guarantor
or to advise the Guarantor of any fact respecting, or any change in, the
financial condition or affairs of the Borrower that might come to the knowledge
of 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 the Guarantor or might (or does) materially increase the risk of the
Guarantor as guarantor or might (or would) affect the willingness of the
Guarantor to continue as guarantor with respect to the Obligations.
11. Affirmative Covenants. The Guarantor hereby agrees that,
unless the Agent and the Required Lenders consent otherwise in writing:
a. The Guarantor shall deliver, or cause to be delivered to
the Agent (for delivery by the Agent to the Lenders) all documents required to
be delivered pursuant to SECTION 6.1(B) and (C) of the Loan Agreement, and such
further information about the Guarantor as the Agent may from time to time
reasonably request, to the extent that such information is relevant to the
performance of the Guarantor's Guaranty Obligations hereunder.
b. The Guarantor shall promptly, but in no event later than
five (5) Business Days after Guarantor obtains knowledge thereof, give written
notice to the Agent of (i) any Event of Default hereunder or any event, which
with the passage of time or giving of notice or both, shall constitute an Event
of Default hereunder, and (ii) any material litigation or proceeding involving
claims against the Guarantor which are not covered by insurance and, if
requested by the Agent, the Guarantor shall maintain
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reserves therefor in accordance with Generally Accepted Accounting Principles.
c. The Guarantor shall (i) maintain and preserve its
corporate existence and all material licenses, permits and franchises necessary
to the conduct of its business, (ii) conduct its business in an orderly and
efficient manner, (iii) keep its properties in good working order and condition
(normal wear and tear excepted), and (iv) timely file all reports, applications
and licenses required by Governmental Authorities.
d. The Guarantor shall pay all taxes, assessments and other
governmental charges when due and all other obligations in accordance with
customary trade practices, and shall comply with all acts, regulations and
orders of any Governmental Authority; provided, however, that the Guarantor may
in good faith by appropriate proceedings and with due diligence contest any
such indebtedness, taxes, assessments, governmental charges, acts, regulations
and orders so long as such matter does not materially adversely affect the
Guarantor, and so long as the Guarantor has established reserves with respect
thereto in accordance with the advice of its accountants. The Guarantor shall
also comply with and perform all agreements to which it is a party where
failure to comply would materially and adversely affect the Guarantor.
e. The Guarantor shall maintain adequate books, accounts and
records, and prepare all financial statements in accordance with Generally
Accepted Accounting Principles, consistently applied, and in compliance with
the regulations of Governmental Authorities. The Guarantor shall permit any
representative of the Agent or any Lender to visit and inspect any of the
properties and records of the Guarantor upon reasonable notice at such
reasonable times and as often as may be reasonably requested.
f. The Guarantor shall keep all of the properties owned or
used by it insured against loss or damage by fire, explosion and such other
risks, and shall maintain general liability insurance, against such casualties,
risks and contingencies, and in such amounts, as are customary for similarly
situated and properly managed businesses.
12. Negative Covenants.
Guarantor agrees that, unless the Agent and the Required Lenders
otherwise consent in writing, Guarantor will not:
a. Liquidate, wind up its affairs or dissolve, or enter into
any merger, share exchange, syndicate or other combination, unless, in the case
of a merger, the Guarantor is the surviving corporation of such merger.
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b. Except as contemplated by the Pledge Agreement, sell,
pledge, hypothecate, or otherwise transfer any of the capital stock of the
Borrower or otherwise cease to hold full legal and beneficial title to such
stock.
c. Engage in any business or own any properties other
than its ownership of the stock of the Borrower.
13. Events of Default The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
a. The Guarantor fails to make any payment required
hereunder with respect to the Guaranty Obligations when such payment is due;
b. The Guarantor fails to comply with the terms of
SECTION 11(B) of this Guaranty;
c. The Guarantor fails or neglects to observe, perform
or comply with, on behalf of the Borrower and in accordance with the Guaranty
Obligations, any term, provision, condition or covenant contained in this
Guaranty and not described in SUBSECTIONS (A) or (B) above, and the same is not
cured to the Guaranteed Parties' reasonable satisfaction within thirty (30)
days after Guarantor acquires knowledge thereof;
d. Any representation or warranty made in writing by or
on behalf of the Guarantor in this Guaranty or in the Pledge Agreement in
connection herewith or therewith shall prove to have been false or incorrect in
any material respect at the time as of which such representation or warranty
was made;
e. The occurrence of any payment default, whether by
acceleration or otherwise, of any Indebtedness in excess of $250,000 of the
Guarantor, or any other default under any agreement giving rise to such
Indebtedness if the effect of the default is to cause the acceleration of or
permit the acceleration of such Indebtedness;
f. The entry of a judgment in excess of $250,000 or the
issuance of a warrant of attachment, execution or similar process or the
creation of a mechanics lien or other involuntary lien against the Guarantor or
any of its assets, which shall not be dismissed, discharged or bonded within
sixty (60) days or appealed from and stayed;
g. A notice of lien, levy or assessment is filed of record on
all or any portion the assets of the Guarantor in excess of $250,000 by any
Governmental Authority with respect to any claim owing by the Guarantor and
becoming a lien or encumbrance upon any asset of the Guarantor and either (i)
the same is not dismissed, released or discharged within sixty (60) days after
the same
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becomes a lien or encumbrance or, in the case of ad valorem taxes, prior to the
last day when payment may be made without penalty, or (ii) the execution or
other enforcement of the same and the claims secured thereby are not
effectively stayed and are not being actively contested in good faith by
appropriate proceedings;
h. The filing by the Guarantor of any voluntary petition
seeking liquidation, reorganization, arrangement, readjustment of debts or for
any other relief under any bankruptcy or similar act or law pertaining to
insolvency or debtor relief, now or hereafter existing;
i. The filing against the Guarantor of any involuntary
petition seeking liquidation, reorganization, arrangement, readjustment of
debts or for any other relief under the any bankruptcy law or other act or law
pertaining to insolvency or debtor relief, now or hereafter existing, which
petition is not dismissed within sixty (60) days of the date of filing;
j. A custodian, trustee, receiver or assignee for the
benefit of creditors is appointed or takes possession of the properties of the
Guarantor in an insolvency proceeding; or
k. The occurrence of an Event of Default (as defined in
the Loan Agreement).
14. Additional Liability of the Guarantor. If the Guarantor is or
becomes liable for any Indebtedness owing by the Borrower to any Guaranteed
Party by endorsement or otherwise, other than under this Guaranty, such
liability shall not be in any manner impaired or reduced hereby, but shall have
all and the same force and effect it would have had if this Guaranty had not
existed and the Guaranty Obligations shall not be in any manner impaired or
reduced thereby.
15. Cumulative Rights. All rights of the Guaranteed Parties
hereunder or otherwise arising under any documents executed in connection with
or as security for the Obligations and the Guaranty Obligations are separate
and cumulative and may be pursued separately, successively or concurrently, or
not pursued, without affecting or limiting any other right of the Guaranteed
Parties and without affecting or impairing the liability of the Guarantor.
16. Usury. Notwithstanding any other provisions herein contained,
no provision of this Guaranty shall require or permit the collection from the
Guarantor of interest in excess of the maximum rate or amount that the
Guarantor may be required or permitted to pay pursuant to any applicable law.
17. Multiple Counterparts; Captions; Severability. This Guaranty
may be executed in multiple counterparts, each of which shall be deemed an
original but all of which shall constitute but one and the same document.
Captions are for reference only and in no way limit the terms of this Guaranty.
To the extent any
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provision of this Guaranty is prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
18. Agent's Duty to Lenders. The Agent is serving as collateral
agent for the Lenders pursuant to the Loan Agreement. The rights and duties of
the Agent hereunder shall be exercised for the benefit of the Lenders and in
accordance with the duties of the Agent to the Lenders as set forth in the Loan
Agreement.
19. Agent and Lender Assigns. This Guaranty is intended for and
shall inure to the benefit of the Guaranteed Parties and each and every Person
who shall from time to time be or become the owner or holder of any of the
Obligations and the Guaranty Obligations, and each and every reference herein
to the "Agent," "Lenders" and "Guaranteed Parties" shall include and refer to
each and every successor or assignee of such Persons at any time holding or
owning any part of or interest in any part of the Obligations and the Guaranty
Obligations. This Guaranty shall be transferable with the same force and
effect, and to the same extent, that the Obligations and the Guaranty
Obligations are transferable, it being understood and stipulated that upon
assignment or transfer by any Guaranteed Party of any of the Obligations and
the Guaranty Obligations the legal holder or owner of the Obligations and the
Guaranty Obligations (or a part thereof or interest therein thus transferred or
assigned by such Guaranteed Party) shall (except as otherwise stipulated by the
Guaranteed Party in its assignment) have and may exercise all of the rights
granted to the Guaranteed Party under this Guaranty to the extent of that part
of or interest in the Obligations and the Guaranty Obligations thus assigned or
transferred to said Person. The Guarantor expressly waives notice of transfer
or assignment of the Obligations and the Guaranty Obligations, or any part
thereof, or of the rights of a Guaranteed Party hereunder. Failure to give
notice will not affect the liabilities of the Guarantor hereunder.
20. Application of Payments. The Agent may apply payments
received by it, for the account of the Lenders, from any source against that
portion of the Obligations and the Guaranty Obligations (principal, interest,
court costs, attorneys' fees or other) in such priority and fashion as it may
deem appropriate, subject to the Agent's obligations to the Lenders under the
Loan Agreement.
21. Notice. All notices and other communications hereunder shall
be in writing and shall be deemed to have been validly served, given or
delivered three (3) days after deposit in the United States mails with postage
prepaid, as certified or registered mail and addressed to the party to be
notified as follows:
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If to the Guarantor: Lason, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxx, XX 00000
Attn: Messrs. Xxxx X. Xxxxxx
and Xxxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
with a copy (which copy shall not constitute notice to the Guarantor) to:
Xx. Xxxxxxxx Xxxxxx
Seyburn, Kahn, Xxxx et al.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
If to the Agent: First Union National Bank
of North Carolina
Corporate Finance Division
One First Union Center, CORP-8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
with copies (which copies shall not constitute notice to the Agent) to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and, to each Lender, at the address given for such Lender on Annex I to the
Loan Agreement, or for each party hereto, to such other address as such party
may designate for itself by like notice. Notice also shall be deemed to have
been validly served, given or delivered on the date of delivery to such party
at such address, if notice is given or delivered by overnight delivery service,
hand, telex, telegram or facsimile transmitter (with confirmed receipt).
22. No Waiver; Amendments. No delay on the part of the Agent,
the Lenders or of any holder of any of the Guaranty Obligations in exercising
any of its options, powers or rights, or partial or single exercise thereof,
shall constitute a waiver thereof. No amendment of any provision of this
Guaranty Agreement shall in any event be effective unless the same shall be in
writing and signed by the Agent, on behalf of the Lenders, and the Guarantor.
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23. GOVERNING LAW; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS;
CONSENT TO JURISDICTION. 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, 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 LOAN
DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE
OTHER LOAN DOCUMENTS, OR ANY PROCEEDING TO WHICH ANY GUARANTEED PARTY OR
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 GUARANTOR. 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. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED
BY LAW OR AFFECT THE RIGHT OF ANY GUARANTEED PARTY OTHERWISE SO ENTITLED TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER
JURISDICTION.
24. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES TRIAL BY
JURY TO THE EXTENT AND ON THE TERMS PROVIDED IN SECTIONS 14.2(B) AND (C) OF THE
LOAN AGREEMENT, WITH THE SAME FORCE AND EFFECT AS IF SUCH PROVISIONS OF THE
LOAN AGREEMENT WERE SET FORTH IN FULL HEREIN AND AS IF EACH REFERENCE IN SUCH
PROVISIONS TO BORROWER REFERRED TO THE GUARANTOR.
25. Conflict of Terms. The terms of this Guaranty Agreement and
the terms of the Loan Agreement shall be construed and interpreted to the
fullest extent possible to give effect to all such terms. In the event of any
conflict between the terms of this Guaranty Agreement and the Loan Agreement,
the terms of the Loan Agreement shall control.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty under
seal as of the day and year first above written.
LASON, INC.,
a Delaware corporation
[CORPORATE SEAL] By:
--------------------------------------
Xxxx X. Xxxxxx, CEO
ATTEST:
------------------------------
Secretary
--------------, ----
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent
By:
--------------------------------------
Vice President
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