Exhibit 10.5
LIMITED GUARANTY AGREEMENT
THIS LIMITED GUARANTY AGREEMENT (GUARANTY) is given as of March
_____, 2000, by GP STRATEGIES CORPORATION, a Delaware corporation
(GUARANTOR), for the benefit of NATIONAL BANK OF CANADA, a Canadian
chartered bank (LENDER), with respect to the obligations of GSE
SYSTEMS, INC., a Delaware corporation, GSE PROCESS SOLUTIONS, INC., a
Delaware corporation, and GSE POWER SYSTEMS, INC., a Delaware
corporation (individually, a BORROWER and collectively, the
BORROWERS), to the LENDER.
RECITALS
The BORROWERS have requested certain credit accommodations from the
LENDER as set forth in the Loan and Security Agreement of even date
herewith by and between the BORROWERS and the LENDER (as the same may
be amended, modified, extended, renewed, restated, supplemented or
replaced from time to time LOAN AGREEMENT). The LENDER has agreed to
provide the requested credit accommodations to the BORROWERS, but only
if, inter alia, the GUARANTOR provides to the LENDER the guaranties of
payment and performance set forth in this GUARANTY. The GUARANTOR is
willing to provide this GUARANTY to the LENDER in order to induce the
LENDER to provide the requested credit accommodations to the
BORROWERS.
All capitalized terms used in this GUARANTY without definition shall
have the respective meanings given such terms in the LOAN AGREEMENT.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the GUARANTOR hereby agrees to provide to the
LENDER the following guaranties and indemnifications.
Section 1. Guaranty. The GUARANTOR guarantees: (a) the payment of any
and all sums now or hereafter due and owing to the LENDER by the
BORROWERS (or any of them) arising out of, related to, as a result of,
or in connection with the LOAN, the LETTERS OF CREDIT, the CREDIT
FACILITY, or any other existing or future indebtedness, liability, or
obligation of every kind, nature, type, and variety owed by the
BORROWERS (or any of them) to the LENDER from time to time, arising
out of, related to, as a result of, or in connection with the LOAN
AGREEMENT, or any of the transactions contemplated by the LOAN
DOCUMENTS (as defined below), including all renewals, refinancings,
extensions, substitutions, amendments, and modifications thereof, no
matter when or how created, arising, evidenced, or acquired, and
whether or not presently contemplated or anticipated, whether joint or
several, including, but not limited to, all amounts of principal,
interest, charges, reimbursements, advancements, escrows, and fees;
(b) that all sums now or hereafter due and owing by the BORROWERS (or
any of them) to the LENDER arising out of, related to, as a result of,
or in connection with the LOAN, the LETTERS OF CREDIT, the CREDIT
FACILITY, the LOAN AGREEMENT, or any of the transactions contemplated
by the LOAN DOCUMENTS, shall be paid when and as due, whether by
reason of installment, maturity, acceleration or otherwise, time being
of the essence; and (c) the timely, complete, continuous, and strict
performance and observance by the BORROWERS of each of the terms,
covenants, agreements and conditions contained in any and all existing
or future documents, instruments, agreements, and writings of every
kind, nature, type, and variety which evidence, reflect, embody, give
rise to or secure any and all existing and future indebtedness,
liabilities, and obligations of any kind of the BORROWERS (or any of
them) to the LENDER arising out of, related to, as a result of, or in
connection with the LOAN, the LETTERS OF CREDIT, the CREDIT FACILITY,
the LOAN AGREEMENT, or any of the transactions contemplated thereby
(together with the LOAN AGREEMENT, collectively, LOAN DOCUMENTS). As
used in this GUARANTY, the term OBLIGATIONS shall refer to the
obligations of payment, performance, and indemnification which the
GUARANTOR has undertaken and assumed pursuant to this GUARANTY, both
as described in this Section and in other Sections of this GUARANTY.
Section 2. Maximum Amount of Guaranty. The monetary liability of the
GUARANTOR with respect to the OBLIGATIONS hereunder shall be limited
to the sum of One Million Eight Hundred Thousand Dollars
($1,800,000.00) (GUARANTY MONETARY AMOUNT); provided that the
proceeds of the liquidation of any of the collateral securing the
obligations of the BORROWERS (or any of them) to the LENDER and any
payments made by any of the BORROWERS or any other guarantor, and any
other payments obtained from any other source, shall not be applied
to, or be considered a discharge of, the OBLIGATIONS until all
amounts, other than those which have been guaranteed, have been paid
in full. Notwithstanding the immediately preceding sentence, the
GUARANTY MONETARY AMOUNT and the limitation set forth in this Section
on the monetary liability of the GUARANTOR with respect to the
OBLIGATIONS shall not include nor be deemed a limit upon the LENDERS
right pursuant to any other Section of this GUARANTY (including,
without limitation, Section 18 hereof) to recover from the GUARANTOR
costs and expenses, including reasonable attorneys fees, in enforcing
or realizing upon this GUARANTY. The GUARANTY MONETARY AMOUNT may be
reduced at each fiscal year-end date (beginning with the BORROWERS
fiscal year ending December 31, 1999) upon the determination by the
LENDER, in each instance, that the BORROWERS have achieved and
satisfied the following conditions precedent: (a) no EVENT OF DEFAULT
(as defined below and as defined in the LOAN AGREEMENT) shall have
occurred hereunder or under the LOAN AGREEMENT during the fiscal year
of the BORROWERS ending on such fiscal year-end date; (b) no DEFAULT
(as defined in the LOAN AGREEMENT) shall have occurred and be
continuing on such fiscal year end date; (c) no default (defined for
purposes of this clause (c) to mean any event, occurrence or
omission which, with the giving of notice, the passage of time, or
both, would constitute an EVENT OF DEFAULT) under this GUARANTY shall
have occurred and be continuing on such fiscal year-end date; (d)
EBITDA (as defined in the LOAN AGREEMENT) of the BORROWERS and their
consolidated subsidiaries for the fiscal year of the BORROWERS ending
on such fiscal year-end date, and reported to the LENDER by the
BORROWERS in their audited annual financial statements for such fiscal
year, shall have been equal to at least Five Million Five Hundred
Thousand Dollars ($5,500,000.00); and (e) NET PROFIT AFTER TAX (as
defined in the LOAN AGREEMENT) of the BORROWERS and their consolidated
subsidiaries for the fiscal year of the BORROWERS ending on such
fiscal year-end date, and reported to the LENDER by the BORROWERS in
their audited annual financial statements for such fiscal year, shall
have been equal to at least One Million Three Hundred Thousand Dollars
($1,300,000.00). On the first fiscal year-end date as of which all of
the foregoing conditions precedent are achieved and satisfied, the
GUARANTY MONETARY AMOUNT under this GUARANTY shall be the sum of
Nine Hundred Thousand Dollars ($900,000.00). On the second fiscal
year-end date as of which all of the foregoing conditions precedent
are achieved and satisfied, this GUARANTY shall be released. As used
in this Section 2, the term fiscal year shall mean the FISCAL YEAR
of the BORROWERS as defined in the LOAN AGREEMENT.
Section 3. Nature Of Guaranty. This GUARANTY: (a) is (i) irrevocable,
(ii) absolute and unconditional, (iii) direct, immediate, and primary,
and (iv) one of payment and not just collection; and (b) makes the
GUARANTOR a surety to the LENDER with respect to the OBLIGATIONS and
the equivalent of a co-obligor with the BORROWERS. Without limiting
the foregoing, it is specifically understood that any modification,
limitation or discharge of any of the liabilities or obligations of
the BORROWERS (or any of them), any other guarantor or any other
obligor under any of the LOAN DOCUMENTS, arising out of, or by virtue
of, any bankruptcy, arrangement, reorganization or similar proceeding
for relief of debtors under federal or state law initiated by or
against the BORROWERS (or any of them), any other guarantor or any
obligor under any of the LOAN DOCUMENTS shall not modify, limit,
lessen, reduce, impair, discharge, or otherwise affect the liability
of the GUARANTOR hereunder in any manner whatsoever, and this GUARANTY
shall remain and continue in full force and effect.
Section 4. Accuracy Of Representations. The GUARANTOR guaranties that
all representations and warranties made by the GUARANTOR to the LENDER
prior to or after the date of this GUARANTY are and will continue to
be true, correct, accurate, and complete and not knowingly misleading,
and, subject to the limitations set forth in Section 2 hereof, the
GUARANTOR agrees to indemnify and hold the LENDER harmless from any
loss, cost, or expense which the LENDER may suffer, sustain or incur
as a result of any representation or statement of the BORROWERS (or
any of them) or of the GUARANTOR being materially false, incorrect,
inaccurate, incomplete, or knowingly misleading.
Section 5. Representations And Warranties Of Guarantor. To induce the
LENDER to accept this GUARANTY for the purposes for which it is given,
the GUARANTOR represents and warrants to the LENDER as follows:
(a) The GUARANTOR is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation.
The GUARANTOR has the lawful power to own its properties and to engage
in the businesses it conducts, and is duly qualified and in good
standing as a foreign corporation in the jurisdictions wherein the
nature of the business transacted by it or property owned by it makes
such qualification necessary and the failure to so qualify would have
a material adverse effect on the ability of the GUARANTOR to perform
its OBLIGATIONS hereunder.
(b) Any financial statements submitted by the GUARANTOR to the LENDER,
including any schedules and notes pertaining thereto, have been
prepared in accordance with G.A.A.P. (as defined below), and fully and
fairly present the financial condition of the GUARANTOR at the dates
thereof and the results of operations for the periods covered thereby,
and there has been no material adverse change in the financial
condition or businesses of the GUARANTOR from the dates thereof to the
date hereof, other than as disclosed to the LENDER or in any other
public document or press releases. All information submitted by or on
behalf of the GUARANTOR in connection with any of the OBLIGATIONS is
true, accurate and complete in all material respects as of the date
made and contains no knowingly false, incomplete or misleading
statements.
(c) There are no material actions, suits, investigations, or
proceedings pending, or to the knowledge of the GUARANTOR, threatened
against the GUARANTOR or the assets of the GUARANTOR, except as
specifically disclosed on Schedule 5(c) attached hereto. The GUARANTOR
has no material direct or contingent liability known to the GUARANTOR
and not previously disclosed to the LENDER except (i) as disclosed in
the financial statements and (ii) for liabilities and obligations (A)
incurred in the ordinary course of business and consistent with past
practices and (B) the restructuring charges and write-offs in the
third and fourth quarters of 1999 disclosed in the press releases
attached hereto or in any other public documents, nor does the
GUARANTOR know of or have any reason to expect any other material
adverse change in the GUARANTORS assets, liabilities, properties,
business, or condition, financial or otherwise.
(d) The GUARANTOR is not in default with respect to any of its
existing indebtedness, except as specifically disclosed on Schedule
5(d) attached hereto, and the making and performance of this GUARANTY
will not (immediately, with the passage of time, the giving of
notices, or both), (i) violate the charter or by-laws of the
GUARANTOR, (ii) violate any laws, (iii) result in a default under
material any contract, agreement, or instrument to which the GUARANTOR
is a party or by which the GUARANTOR or its property is bound, or (iv)
result in the creation or imposition of any security interest in, or
lien or encumbrance upon, any of the assets of the GUARANTOR. No
approval, consent, order, authorization or license by, or giving
notice to, or taking any other action with respect to, any
governmental or regulatory authority or agency is required for the
execution and delivery by the GUARANTOR of this GUARANTY or for the
performance by the GUARANTOR of any of the agreements and obligations
hereunder.
(e) The GUARANTOR has the power and legal authority to enter into and
perform this GUARANTY, to incur the OBLIGATIONS, and to perform,
observe and comply with all of the GUARANTORS agreements and
obligations hereunder. The GUARANTOR has taken all corporate action
necessary to authorize the execution, delivery, and performance of
this GUARANTY.
(f) This GUARANTY, when delivered, will be valid, binding, and
enforceable in accordance with its terms.
(g) The incurring or satisfaction of the OBLIGATIONS has not left and
will not leave the GUARANTOR insolvent, with an unreasonably small
capital, or unable to pay existing or future debts as they mature.
Section 6. Reporting Requirements. The GUARANTOR shall submit the
following items to the LENDER:
(a) As soon as available and in any event within fifty (50) calendar
days after the end of each of the first three fiscal quarters of each
fiscal year of the GUARANTOR, the GUARANTOR shall submit to the LENDER
its quarterly report on Form 10-Q, certified by an officer of the
GUARANTOR familiar with the financial operations of the GUARANTOR
(subject to year-end adjustments).
(b) As soon as available and in any event within one hundred thirty
(130) calendar days after the end of each fiscal year of the
GUARANTOR, the GUARANTOR shall submit to the LENDER its annual report
on Form 10-K.
(c) All financial statements shall be in reasonable detail, including
all supporting schedules and comments necessary to verify or confirm
entries in the financial statements. All financial statements shall be
prepared in accordance with G.A.A.P. As used in this GUARANTY, the
term G.A.A.P means, with respect to any date of determination,
generally accepted accounting principles as used by the Financial
Accounting Standards Board and/or the American Institute of
Certificate Public Accountants, consistently applied and maintained
throughout the periods indicated. The costs of supplying the financial
statements shall be paid by the GUARANTOR.
Section 7. Lender Need Not Pursue Other Rights. The LENDER shall be
under no obligation to pursue any of the LENDERS rights and remedies
against any BORROWER or any of the collateral of any BORROWER securing
the obligations of the BORROWERS (or any of them) to the LENDER or
against any other guarantor or any collateral of any other guarantor
before pursuing the LENDERS rights and remedies against the
GUARANTOR.
Section 8. Certain Rights Of Lender. The GUARANTOR hereby assents to
any and all terms and agreements between the LENDER and the BORROWERS
(or any of them) or between the LENDER and any other guarantor, and
all amendments and modifications thereof, whether presently existing
or hereafter made and whether oral or in writing. The LENDER may,
without compromising, impairing, diminishing, or in any way releasing
the GUARANTOR from the OBLIGATIONS and without notifying or obtaining
the prior approval of the GUARANTOR, at any time or from time to time:
(a) waive or excuse a default by the BORROWERS (or any of them) or any
other guarantor, or delay in the exercise by the LENDER of any or all
of the LENDERS rights or remedies with respect to such default or
defaults; (b) grant extensions of time for payment or performance by
the BORROWERS or any other guarantor; (c) release, substitute,
exchange, surrender, or add collateral of any BORROWER or of any other
guarantor, or waive, release, or subordinate, in whole or in part, any
lien or security interest held by the LENDER on any real or personal
property securing payment or performance, in whole or in part, of the
obligations of the BORROWERS (or any of them) to the LENDER or of any
other guarantor; (d) release the BORROWERS (or any of them) or any
other guarantor; (e) apply payments made by the BORROWERS or by any
other guarantor to any sums owed by the BORROWERS to the LENDER, in
any order or manner, or to any specific account or accounts, as the
LENDER may elect; and (f) modify, change, renew, extend, or amend in
any respect the LENDERS agreement with the BORROWERS (or any of them)
or any other guarantor, or any document, instrument, or writing
embodying or reflecting the same, including without limitation
modifications which increase the amount of the obligations of the
BORROWERS under the LOAN DOCUMENTS or extend the maturity of the
obligations of the BORROWERS under the LOAN DOCUMENTS.
Section 9. Waivers By Guarantor. The GUARANTOR waives: (a) any and all
notices whatsoever with respect to this GUARANTY or with respect to
any of the obligations of the BORROWERS (or any of them) to the
LENDER, including, but not limited to, notice of (i) the LENDERS
acceptance hereof or the LENDERS intention to act, or the LENDERS
action, in reliance hereon, (ii) the present existence or future
incurring of any of the obligations of the BORROWERS (or any of them)
to the LENDER or any terms or amounts thereof or any change therein,
(iii) any default by the BORROWERS (or any of them) or any surety,
pledgor, grantor of security, guarantor or any person who has
guarantied or secured in whole or in part the obligations of the
BORROWERS (or any of them) to the LENDER, and (iv) the obtaining or
release of any guaranty or surety agreement, pledge, assignment, or
other security for any of the obligations of the BORROWERS (or any of
them) to the LENDER; (b) presentment and demand for payment of any sum
due from the BORROWERS (or any of them) or any other guarantor and
protest of nonpayment; (c) demand for performance by the BORROWERS (or
any of them) or any other guarantor; and (d) any and all defenses
based on suretyship or impairment of collateral.
Section 10. Unenforceability Of Obligations Of Borrowers. This
GUARANTY shall be valid, binding, and enforceable even if the
obligations of the BORROWERS to the LENDER which are guarantied hereby
are now or hereafter become invalid or unenforceable for any reason.
Section 11. No Conditions Precedent. This GUARANTY shall be effective
and enforceable immediately upon its execution. The GUARANTOR
acknowledges that no unsatisfied conditions precedent to the
effectiveness and enforceability of this GUARANTY exist as of the date
of its execution and that the effectiveness and enforceability of this
GUARANTY is not in any way conditioned or contingent upon any event,
occurrence, or happening, or upon any condition existing or coming
into existence either before or after the execution of this GUARANTY.
Section 12. No Duty To Disclose. The LENDER shall have no present or
future duty or obligation to discover or to disclose to the GUARANTOR
any information, financial or otherwise, concerning any BORROWER, any
other guarantor, or any collateral securing either the obligations of
any BORROWER to the LENDER or of any other person who may have
guarantied in whole or in part the obligations of the BORROWERS to the
LENDER. The GUARANTOR waives any right to claim or assert any such
duty or obligation on the part of the LENDER. The GUARANTOR agrees to
obtain all information which the GUARANTOR considers
either appropriate or relevant to this GUARANTY from sources other
than the LENDER and to become and remain at all times current and
continuously apprised of all information concerning the BORROWERS,
other guarantors, and any collateral which is material and relevant to
the obligations of the GUARANTOR under this GUARANTY.
Section 13. Existing Or Future Guaranties. The execution of this
GUARANTY shall not discharge, terminate or in any way impair or
adversely affect the validity or enforceability of any other guaranty
given by the GUARANTOR to the LENDER. The execution and delivery by
the GUARANTOR of any future guaranty for the benefit of the LENDER
shall not discharge, terminate, or in any way impair or adversely
affect the validity or enforceability of this GUARANTY. All guaranties
provided by the GUARANTOR to the LENDER are intended to be cumulative
and shall remain in full force and effect unless and until discharged
and terminated in accordance with any expressly stated termination
provisions set forth therein.
Section 14. Cumulative Liability. The liability of the GUARANTOR under
this GUARANTY shall be cumulative to, and not in lieu of, the
GUARANTORS liability under any other LOAN DOCUMENT or in any capacity
other than as GUARANTOR hereunder.
Section 15. Obligations Are Unconditional. The payment and performance
of the OBLIGATIONS shall be the absolute and unconditional duty and
obligation of the GUARANTOR, and shall be independent of any defense
or any rights of setoff, recoupment or counterclaim which the
GUARANTOR might otherwise have against the LENDER, and the GUARANTOR
shall pay and perform these OBLIGATIONS, free of any deductions and
without abatement, diminution or setoff. Until such time as the
OBLIGATIONS have been fully paid and performed, the GUARANTOR: (a)
shall not suspend or discontinue any payments provided for herein; (b)
shall perform and observe all of the covenants and agreements
contained in this GUARANTY; and (c) shall not terminate or attempt to
terminate this GUARANTY for any reason. No delay by the LENDER in
making demand on the GUARANTOR for satisfaction of the OBLIGATIONS
shall prejudice or in any way impair the LENDERS ability to enforce
this GUARANTY.
Section 16. Defenses Against Borrowers. The GUARANTOR waives any right
to assert against the LENDER any defense (whether legal or equitable),
claim, counterclaim, or right of setoff or recoupment which the
GUARANTOR may now or hereafter have against the BORROWERS (or any of
them) or any other guarantor.
Section 17. Events Authorizing Acceleration Of The Obligations. The
occurrence of any of the following (each an EVENT OF DEFAULT) shall
entitle the LENDER, without notice or demand, to accelerate and call
due the OBLIGATIONS, even if the LENDER has not accelerated and called
due the sums owed to the LENDER by the BORROWERS: (a) the commencement
by any of the BORROWERS or the GUARANTOR of a voluntary case or
proceeding under any federal or state bankruptcy, insolvency or
similar law; (b) the commencement of an involuntary case or proceeding
against any of the BORROWERS or the GUARANTOR under any federal or
state bankruptcy, insolvency, or similar law, and either (i) such case
or proceeding is not dismissed within ninety (90) calendar days after
commencement, or (ii) an order for relief is entered in such case; (c)
the appointment of a receiver, assignee, custodian, trustee or similar
official under any federal or state insolvency or creditors rights
law for any property of any BORROWER or the GUARANTOR; (d) the
GUARANTOR shall suffer final judgments for the payment of money
aggregating in excess of Two Hundred Fifty Thousand Dollars ($250,000)
and shall not discharge the same within a period of thirty (30) days
unless, pending further proceedings, execution has not been commenced
or if commenced has been effectively stayed; (e) the occurrence of any
EVENT OF DEFAULT as such term is defined in the LOAN AGREEMENT; (f)
a failure of the GUARANTOR to perform any covenant or agreement
contained in this GUARANTY or in any other agreement between the
GUARANTOR and the LENDER; (g) any representation or warranty made in
this GUARANTY or in any report or financial statement furnished in
connection with this GUARANTY, shall prove to have been false or
misleading when made; (h) the LENDER in the good faith reasonable
exercise of the LENDERS discretion determines that a material adverse
change has occurred in the financial condition of the GUARANTOR; (i)
the liquidation or dissolution of any of the BORROWERS or of the
GUARANTOR; or (j) a failure of the GUARANTOR to satisfy any of the
obligations of the GUARANTOR to the LENDER with respect to any loan or
extension of credit by the LENDER to the GUARANTOR or under any other
guaranty given by the GUARANTOR to the LENDER.
Section 18. Expenses Of Collection And Attorneys Fees. Should this
GUARANTY be referred to an attorney for collection, the GUARANTOR
shall pay all of the holders reasonable costs, fees and expenses
resulting from such referral, including reasonable attorneys fees,
which the holder may incur, even though suit has not been filed.
Section 19. Interest Rate After Judgment. If judgment is entered
against the GUARANTOR on this GUARANTY, the amount of the judgment
entered (which, unless applicable law specifically provides to the
contrary, and subject to the limitations set forth in Section 2
hereof, includes all principal, prejudgment interest, late charges,
prepayment charges if any are provided for, collection expenses,
attorneys fees, and court costs) shall bear interest at the highest
rate after default authorized by the LOAN DOCUMENTS as of the date of
entry of the judgment to the extent permitted by applicable law. In
the event any statute or rule of court specifies the rate of interest
which a judgment on this GUARANTY may bear or the amount on which such
interest rate may apply and such rate or amount is less than that
called for in the preceding sentence absent a restriction under
applicable law, the GUARANTOR agrees to pay to the order of the LENDER
an amount as will equal the interest computed at the highest rate
after default provided for in the LOAN DOCUMENTS which would be due on
the judgment amount (which, for this purpose, but subject to the
limitations set forth in Section 2 hereof, shall be considered to
include all principal, prejudgment interest, late charges, prepayment
charges if any are provided for, collection expense fees, attorneys
fees, and court costs) less the interest due on the amount of the
judgment which bears judgment interest.
Section 20. Enforcement During Bankruptcy. Enforcement of this
GUARANTY shall not be stayed or in any way delayed as a result of the
filing of a petition under the United States Bankruptcy Code, as
amended, by or against any or all of the BORROWERS. Should the LENDER
be required to obtain an order of the United States Bankruptcy Court
to begin enforcement of this GUARANTY after the filing of a petition
under the United States Bankruptcy Code, as amended, by or against any
or all of the BORROWERS, the GUARANTOR hereby consents to this relief
and agrees to file or cause to be filed all appropriate pleadings to
evidence and effectuate such consent and to enable the LENDER to
obtain the relief requested.
Section 21. Remedies Cumulative. All of the LENDERS rights and
remedies shall be cumulative and any failure of the LENDER to exercise
any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any time, and from time to
time, thereafter.
Section 22. Continuing Guaranty. This GUARANTY is a continuing
guaranty of all existing and future obligations of the BORROWERS (or
any of them) to the LENDER arising out of, related to, as a result of,
or in connection with the LOAN, the LETTERS OF CREDIT, the CREDIT
FACILITY, the LOAN AGREEMENT, or any of the transactions contemplated
by the LOAN DOCUMENTS. Except as provided in Section 2 hereof, this
GUARANTY may not be terminated by the GUARANTOR until after the
termination of the LOAN DOCUMENTS, in accordance with the provisions
thereof, and the payment (which payment shall not be subject to
challenge or contest) in full of all of the OBLIGATIONS and all of the
BORROWERS obligations and liabilities to the LENDER under the LOAN
DOCUMENTS.
Section 23. Reinstatement. If at any time any payment, or portion
thereof, made by, or for the account of, any BORROWER or the GUARANTOR
on account of any of the obligations and liabilities under any of the
LOAN DOCUMENTS is set aside by any court or trustee having
jurisdiction as a voidable preference, or fraudulent conveyance or
must otherwise be restored or returned by the LENDER to a BORROWER or
any other person or entity under any insolvency, bankruptcy or other
federal and/or state laws or as a result of any dissolution,
liquidation or reorganization of any BORROWER or any other person or
entity, or for any other reason, the GUARANTOR hereby agrees that this
GUARANTY shall continue and remain in full force and effect or be
reinstated, as the case may be, all as though such payment(s) had not
been made.
Section 24. Rights Of Subrogation, Etc. In the event the GUARANTOR
pays any sum to or for the benefit of the LENDER pursuant to this
GUARANTY, the GUARANTOR may not enforce any right of contribution,
indemnification, exoneration, reimbursement, subrogation or other
right or remedy against any BORROWER, any other guarantor, or any
collateral, whether real, personal, or mixed, securing the obligations
of any BORROWER to the LENDER or the obligations of any other
guarantor to the LENDER until such time as the LENDER has been paid in
full and has no further claim against any of the BORROWERS, any other
guarantor, or any collateral. The GUARANTOR waives and releases any
claim which the GUARANTOR hereafter may have against the LENDER if
some action of the LENDER, whether intentional or negligent, impairs,
destroys, or in any way adversely affects any right of contribution,
indemnification, exoneration, reimbursement, subrogation, or the like
which the GUARANTOR may have upon the payment of any sum to or for the
benefit of the LENDER pursuant to this GUARANTY.
Section 25. Subordination Of Certain Indebtedness. If the GUARANTOR
advances any sums to any BORROWER or its successors or assigns, or if
any BORROWER or its successors or assigns shall hereafter become
indebted to the GUARANTOR, such sums and indebtedness shall be
subordinate in all respects to the amounts then or thereafter due and
owing to the LENDER by such BORROWER.
Section 26. Renewals, Etc. This GUARANTY shall apply to all sums now
or hereafter owed by any of the BORROWERS to the LENDER and to all
extensions, modifications, amendments, renewals, substitutions, and
refinancings thereof.
Section 27. Choice Of Law. The laws of the State of New York
(excluding, however, conflict of law principles) shall govern and be
applied to determine all issues relating to this GUARANTY and the
rights and obligations of the parties hereto, including the validity,
construction, interpretation, and enforceability of this GUARANTY and
its various provisions and the consequences and legal effect of all
transactions and events which resulted in the issuance of this
GUARANTY or which occurred or were to occur as a direct or indirect
result of this GUARANTY having been executed.
Section 28. Consent To Jurisdiction; Agreement As To Venue. The
GUARANTOR irrevocably consents to the non-exclusive jurisdiction of
the courts of the State of Maryland and the State of New York and of
the United States District Court for the District of Maryland and for
the Southern District of New York, if a basis for federal jurisdiction
exists. The GUARANTOR agrees that venue shall be proper in any circuit
court of the State of Maryland or the State of New York selected by
the LENDER or in the United States District Court for the District of
Maryland or for the Southern District of New York if a basis for
federal jurisdiction exists and waives any right to object to the
maintenance of a suit in any of the state or federal courts of the
State of Maryland or the State of New York on the basis of improper
venue or of inconvenience of forum.
Section 29. Proofs Of Sums Due On Guaranty. In any action or
proceeding brought by the LENDER to collect the sums owed on this
GUARANTY, a certificate signed by an officer of the LENDER setting
forth the unpaid balances of principal, and any accrued interest,
default interest, attorneys fees, and late charges owed with respect
hereto shall be presumed correct and shall be admissible in evidence
for the purpose of establishing the truth of what it asserts. If the
GUARANTOR wishes to contest the accuracy of the figure set forth in
any such certificate, the GUARANTOR shall have the burden of proving
that the certificate is inaccurate or incorrect.
Section 30. Actions Against Lender. Any action brought by the
GUARANTOR against the LENDER which is based, directly or indirectly,
on this GUARANTY or any matter in or related to this GUARANTY,
including but not limited to the obligations of the BORROWERS to the
LENDER, the administration, collection, or enforcement thereof, shall
be brought only in the courts of the State of New York or, if LENDER
has instituted action against the GUARANTOR in such court, the State
of Maryland. The GUARANTOR agrees that any forum other than the State
of Maryland or the State of New York is an inconvenient forum and that
a suit brought by the GUARANTOR against the LENDER in a court of any
state other than the State of New York or the State of Maryland should
be forthwith dismissed or transferred to a court located in the State
of New York or, if the LENDER has instituted action against the
GUARANTOR in such state, the State of Maryland, by that court.
Section 31. Invalidity Of Any Part. If any provision or part of any
provision of this GUARANTY shall for any reason be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provisions or the
remaining part of any effective provisions of this GUARANTY, and this
GUARANTY shall be construed as if such invalid, illegal, or
unenforceable provision or part thereof had never been contained
herein, but only to the extent of its invalidity, illegality, or
unenforceability.
Section 32. Amendment Or Waiver. This GUARANTY may be amended only by
a writing duly executed by the GUARANTOR and the LENDER. No waiver by
the LENDER of any of the provisions of this GUARANTY or any of the
rights or remedies of the LENDER with respect hereto shall be
considered effective or enforceable unless in writing.
Section 33. Notices. Any notice required or permitted by or in
connection with this GUARANTY shall be in writing and shall be made by
facsimile (confirmed on the date the facsimile is sent by one of the
other methods of giving notice provided for in this Section) or by
hand delivery, by Federal Express, or other similar overnight delivery
service, or by certified mail, unrestricted delivery, return receipt
requested, postage prepaid, addressed to the LENDER or the GUARANTOR
at the appropriate address set forth below or to such other address as
may be hereafter specified by written notice by the LENDER or the
GUARANTOR. Notice shall be considered given as of the date of the
facsimile or the hand delivery, one (1) calendar day after delivery to
Federal Express or similar overnight delivery service, or three (3)
calendar days after the date of mailing, independent of the date of
actual delivery or whether delivery is ever in fact made, as the case
may be, provided the giver of notice can establish the fact that
notice was given as provided herein. If notice is tendered pursuant to
the provisions of this Section and is refused by the intended
recipient thereof, the notice, nevertheless, shall be considered to
have been given and shall be effective as of the date herein provided.
If to the LENDER:
NATIONAL BANK OF CANADA
125 West 55th Street
New York, New York 10019
And
c/o NATIONAL BANK OF CANADA
401 E. Pratt Street, Suite 631
Baltimore, Maryland 21202
Attn: Robert A. Incorvati, Vice President
Facsimile: (410) 837-8359
If to the GUARANTOR:
GP STRATEGIES CORPORATION 9 West 57th Street New York, New York 10019
Attn.: Andrea D. Kantor, Vice President and Corporate Counsel Fax No.:
(212) 230-9545
Section 34. Binding Nature. This GUARANTY shall inure to the benefit
of and be enforceable by the LENDER and the LENDER successors and
assigns and any other person to whom the LENDER may grant an interest
in the obligations of the BORROWERS to the LENDER, and shall be
binding upon and enforceable against the GUARANTOR and the GUARANTORS
successors, and assigns.
Section 35. Assignability. This GUARANTY or an interest therein may be
assigned by the LENDER, or by any other holder, at any time or from
time to time, without any prior notice to or consent from the
GUARANTOR.
Section 36. Final Agreement. This GUARANTY contains the final and
entire agreement between the LENDER and the GUARANTOR with respect to
the guaranty by the GUARANTOR of the BORROWERS obligations to the
LENDER. There are no separate oral or written understandings between
the LENDER and the GUARANTOR with respect thereto.
Section 37. Tense, Gender, Defined Terms, Captions. As used herein,
the plural includes the singular, and the singular includes the
plural. The use of any gender applies to any other gender. All defined
terms are completely capitalized throughout this GUARANTY. All
captions are for the purpose of convenience only.
Section 38. Seal And Effective Date. This GUARANTY is an instrument
executed under seal and is to be considered effective and enforceable
as of the date set forth on the first page hereof, independent of the
date of actual execution.
Section 39. Waiver Of Trial By Jury. The GUARANTOR and the LENDER, by
their execution and acceptance, respectively, of this GUARANTY, agree
that any suit, action, or proceeding, whether claim or counterclaim,
brought or instituted by either party hereto or any successor or
assign of any party on or with respect to this GUARANTY or which in
any way relates, directly or indirectly, to this GUARANTY or any
event, transaction, or occurrence arising out of or in any way
connected with this GUARANTY, or the dealings of the parties with
respect thereto, shall be tried only by a court and not by a jury.
EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
SUCH SUIT, ACTION, OR PROCEEDING.
[Signatures Begin On Next Page]
IN WITNESS WHEREOF, the GUARANTOR has executed this GUARANTY with the
specific intention of creating a document under seal.
ATTEST/WITNESS: GUARANTOR:
GP STRATEGIES CORPORATION
___________________________ By: (SEAL)
Name:
Title:
ACKNOWLEDGMENT
STATE OF ________________, CITY/COUNTY OF _________________, TO WIT: I
HEREBY CERTIFY that on this ______ day of March, 2000, before me, the
undersigned Notary Public of the aforesaid jurisdiction, personally
appeared __________________________, and acknowledged himself/herself
to be the ___________________________ of GP STRATEGIES CORPORATION, a
Delaware corporation, and that he/she, as such, being authorized so to
do, executed the foregoing instrument for the purposes therein
contained by signing the name of GP STRATEGIES CORPORATION, by
himself/herself as ___________________________.
IN WITNESS MY Hand and Notarial Seal.
___________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
______________________