EXHIBIT 10.98
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this "Guaranty") dated as of June 2,
2004 is executed by Xxx Research Corporation, a Delaware corporation (the
"Guarantor") in favor of ABN AMRO BANK N.V. and any of its offices, subsidiaries
or affiliates (the "Bank").
W I T N E S S E T H:
WHEREAS, the Guarantor and the Bank have entered into that certain Second
Amended and Restated Uncommitted Insured Trade Receivables Purchase Agreement,
dated as of March 21, 2003, (the "March Agreement"), as amended by that certain
Amendment to Second Amended and Restated Uncommitted Insured Trade Receivables
Purchase Agreement, dated as of September 24, 2003 (collectively, the "Original
Purchase Agreement") and that certain Second Amendment to Second Amended and
Restated Uncommitted Insured Trade Receivables Purchase Agreement, dated as of
March 26, 2004 (as amended, the "Purchase Agreement"), whereby, among other
things, the Guarantor and the Bank amended the March Agreement to include Xxx
Research International SARL, a Swiss corporation ("LRI"), as an additional
seller of Purchased Receivables (as defined therein) and the Guarantor, LRI and
the Bank agreed to extend the Purchase Period and increase the receivables
purchase facility;
WHEREAS, the Guarantor executed a Guaranty dated as of September 24, 2003
(the "Original Guaranty") in connection with the execution of the Original
Purchase Agreement;
WHEREAS, the Bank may from time to time purchase, on an uncommitted basis,
certain accounts receivable not to exceed $100,000,000, from the Guarantor and
LRI; and
WHEREAS, the Guarantor is willing to increase its exposure under the
Original Guaranty to accommodate the increase in the receivables purchase
facility and to guaranty the Liabilities (as defined below) as hereinafter set
forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
1. (a) The Guarantor hereby unconditionally and irrevocably, as primary
obligor and not merely as surety, guarantees the full and prompt payment when
due, whether by acceleration or otherwise, and at all times thereafter, of all
obligations (monetary or otherwise) of LRI arising pursuant to the Purchase
Agreement to the Bank, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due or to
become due (all such obligations being herein collectively called the
"Liabilities"). All payments by the Guarantor hereunder shall be made in United
States Dollars.
(b) The liability of the Guarantor under this Guaranty shall be absolute
and unconditional irrespective of any lack of genuineness, validity, legality or
enforceability of the Purchase Agreement or any other document, agreement or
instrument relating thereto or any assignment or transfer of any thereof or the
occurrence of a "Country Risk Event" or "New Money Credit Event" (as hereinafter
defined).
For purposes hereof:
"Country Risk Event" means (a) the adoption of any law, rule or regulation
or the action or failure to act by any authority (de jure or de facto) in LRI's
country which (i) changes the Liabilities as originally agreed, (ii) changes the
ownership or control by LRI of its business or assets and/or the Bank's
ownership of its branch or subsidiary in the LRI's country, or (iii) prevents or
restricts the conversion into or transfer
of the agreed currency; or (b) the occurrence of any force majeure or similar
event which, directly or indirectly, prevents or restricts the payment or
transfer of any funds made available by the Bank to its branch or subsidiary in
LRI's country in the agreed currency into an account designated by the Bank and
freely available to the Bank.
"New Money Credit Event" means any increase (directly or indirectly) in
the Bank's exposure (whether by way of additional credit or banking facilities
or otherwise, including as part of a restructuring) to LRI occurring by reason
of (i) any law, action or requirement of any authority (de jure or de facto) or
other person in LRI's country or (ii) any request of external indebtedness of
borrowers in LRI's country applicable to banks generally which conduct business
with such borrowers or (iii) any agreement in relation to (i) or (ii), in each
case to the extent calculated by reference to the Liabilities outstanding prior
to such increase.
Upon execution of this Guaranty, this Guaranty shall amend and completely
restate and supersede the Original Guaranty. Notwithstanding the amendment and
restatement of the Original Guaranty by this Guaranty, the indebtedness,
liabilities and obligations owing to Bank by LRI under the Original Purchase
Agreement remain outstanding as of the date hereof, constitute continuing
Liabilities hereunder and shall continue to be secured by the collateral
described in and pursuant to the Purchase Agreement but are payable in
accordance with the terms of this Guaranty and the Purchase Agreement. This
Guaranty is given in substitution for and as a continuation and extension of the
Original Guaranty and is in no way intended to constitute a novation of the
Original Guaranty.
2. This Guaranty shall in all respects be a continuing, irrevocable, absolute
and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of the Guarantor or that
at any time or from time to time no Liabilities are outstanding) until all
commitments to create Liabilities have terminated and all Liabilities have been
paid in full.
3. The Guarantor further agrees that if at any time all or any part of any
payment theretofore applied by the Bank to any of the Liabilities is or must be
rescinded or returned by the Bank for any reason whatsoever (including the
insolvency, bankruptcy or reorganization of LRI or the Guarantor), such
Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Bank, and this Guaranty shall
continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Bank had not been made.
4. The Bank may, from time to time, at its sole discretion and without notice
to the Guarantor, take any or all of the following actions: (a) retain or obtain
a security interest in any property to secure any of the Liabilities or any
obligation hereunder, (b) retain or obtain the primary or secondary obligation
of any obligor or obligors, in addition to the Guarantor, with respect to any of
the Liabilities, (c) extend or renew any of the Liabilities for one or more
periods (whether or not longer than the original period), alter or exchange any
of the Liabilities, or release or compromise any obligation of the Guarantor
hereunder or any obligation of any nature of any other obligor with respect to
any of the Liabilities, (d) release its security interest in, or surrender,
release or permit any substitution or exchange for, all or any part of any
property securing any of the Liabilities or any obligation hereunder, or extend
or renew for one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations of any nature
of any obligor with respect to any such property, and (e) resort to the
Guarantor for payment of any of the Liabilities when due, whether or not the
Bank shall have resorted to any property securing any of the Liabilities or any
obligation hereunder or shall have proceeded against any other obligor primarily
or secondarily obligated with respect to any of the Liabilities.
5. The Guarantor hereby expressly waives: (a) notice of the acceptance by the
Bank of this Guaranty, (b) notice of the existence or creation or non-payment of
all or any of the Liabilities, (c) presentment, demand, notice
of dishonor, protest, and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon any Liabilities or any security
for or guaranty of any Liabilities.
6. Notwithstanding any payment made by or for the account of the Guarantor
pursuant to this Guaranty, the Guarantor shall not be subrogated to any right of
the Bank until such time as the Bank shall have received final payment in cash
of the full amount of all Liabilities.
7. The Guarantor further agrees to pay all expenses (including the reasonable
attorneys' fees and charges including that of internal counsel) paid or incurred
by the Bank in endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this Guaranty against the Guarantor.
8. The creation or existence from time to time of additional Liabilities to
the Bank is hereby authorized, without notice to the Guarantor, and shall in no
way affect or impair the rights of the Bank or the obligations of the Guarantor
under this Guaranty, including the Guarantor's guaranty of such additional
Liabilities.
9. Subject to the limitations contained in Section 12(a) of the Purchase
Agreement, the Bank may from time to time without notice to the Guarantor,
assign or transfer any or all of the Liabilities or any interest therein.
Notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities shall be and remain Liabilities for the
purposes of this Guaranty, and each and every immediate and successive assignee
or transferee of any of the Liabilities or of any interest therein shall, to the
extent of the interest of such assignee or transferee in the Liabilities, be
entitled to the benefits of this Guaranty to the same extent as if such assignee
or transferee were the Bank.
10. No delay on the part of the Bank in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the Bank
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any provision of this Guaranty be binding upon the Bank, except as expressly set
forth in a writing duly signed and delivered by the Bank. No action of the Bank
permitted hereunder shall in any way affect or impair the rights of the Bank or
the obligations of the Guarantor under this Guaranty. For purposes of this
Guaranty, Liabilities shall include all obligations of LRI to the Bank,
notwithstanding any right or power of LRI or anyone else to assert any claim or
defense as to the invalidity or lack of enforceability of any such obligation,
and no such claim or defense shall affect or impair the obligations of the
Guarantor hereunder.
11. This Guaranty shall be binding upon the Guarantor and the successors and
assigns of the Guarantor. All references herein to LRI shall be deemed to
include any successor or successors to LRI.
12. Notwithstanding anything contained herein to the contrary, this Guaranty
shall not in any way diminish the rights and obligations of Guarantor as
Collection Agent and Seller under the Purchase Agreement.
13. Except for notices and demands required to be delivered or made upon
Guarantor pursuant to the Purchase Agreement, the undersigned hereby waives, to
the extent permitted by the laws of the State of California: (a) any notice
required by law or otherwise to preserve any rights hereunder or under the
Purchase Agreement against Guarantor or against LRI, including without
limitation (i) acceptance, presentment, demand, protest, or proof of
non-performance of any Liabilities, (ii) any notice of the acceptance of this
Guarantee, (iii) any notices of the creation, renewal, extension or accrual of
any Liabilities or any notice of or proof of reliance by the Bank upon this
Guarantee or acceptance of this Guarantee, and (iv) all notices which may be
required by statute, rule of law or otherwise, now or hereafter in effect, to
preserve intact any rights of the Bank against Guarantor, (b) any remedy
contained in the Purchase Agreement or otherwise available to the undersigned,
(c) any requirement of diligence on the part of any Person, including without
limitation diligence in making any claim or commencing suit hereon or on the
Purchase Agreement and any requirement to mitigate damages or exhaust remedies
under the Purchase Agreement, (d) the right to interpose all substantive and
procedural defenses of the law of guarantee, indemnification and suretyship,
except the defenses of prior payment or prior performance by Guarantor of the
Liabilities, (e) all rights and remedies accorded by the laws of the State of
California to
guarantors or sureties, including any extension of time conferred by any law now
or hereafter in effect, (f) any right or claim of right to cause a marshaling of
LRI's assets or to cause the Bank to proceed against LRI or any collateral held
by the Bank at any time or in any particular order, (g) any rights to the
enforcement, assertion or exercise by the Bank of any right, power, privilege or
remedy conferred herein or in the Purchase Agreement or otherwise, (h) any
notices of the sale, transfer or other disposition of any right, title to or
interest in the Purchase Agreement, and (i) any other right whatsoever which
might otherwise constitute a discharge, release or defense of the undersigned
hereunder or which might otherwise limit recourse against Guarantor. No failure
to exercise and no delay in exercising, on the part of the Bank, any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege preclude any other
or thither exercise thereof, or the exercise of any other power or right. The
rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law. Guarantor expressly waives any and all
benefits under Sections 2787 to 2855, inclusive, and Sections 2899 and 3433 of
the California Civil Code.
14. This Guaranty shall be governed by and construed in accordance with and
governed by the laws of the State of California applicable to contracts made and
to be fully performed in such State. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such 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.
15. This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty.
16. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF CALIFORNIA OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHEN
DISTRICIT OF CALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE BANK'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE
SPECIFIED IN WRITING TO THE BANK AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF CALIFORNIA. THE GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
17. THE GUARANTOR AND THE BANK (BY ACCEPTING THE BENEFITS HEREOF), HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS GUARANTY AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[the Signature Page Follows]
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as
of the day and year first above written.
XXX RESEARCH CORPORATION
a Delaware corporation
By: /s/ Xxxx XxXxxxx
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Title: Assistant Treasurer
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