EXHIBIT 10(E)
GUARANTY AGREEMENT
Guaranty Agreement, dated as of July 9, 1997, between AVEST, INC., a
Delaware corporation, (the "Guarantor"), having an address at 205 Express
Street, Plainview, New York, and FLEET NATIONAL BANK, a national banking
association (the "Guaranteed Party" or "Lender"), having offices at One Landmark
Square, Stamford, Connecticut 06901.
W I T N E S S E T H
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WHEREAS, simultaneously with the execution and delivery of this Agreement,
Astrex, Inc. (the "Borrower"), T.F. Cushing, Inc., a Massachusetts corporation,
and the Guaranteed Party are executing and delivering a Credit and Security
Agreement (as same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") of even date herewith; and
WHEREAS, it is a condition precedent to the Guaranteed Party extending any
credit (or other financial accommodations) to the Borrower under the Credit
Agreement that the Guarantor execute and deliver this Agreement; and
WHEREAS, the Guarantor shall derive substantial and material benefits,
financial and otherwise, from any extension of credit or other financial
accommodation to the Borrower under the Credit Agreement, including, without
limitation, the fact that loans under the Credit Agreement will enable the
Borrower to make payments to the Guarantor under that certain Lease Agreement
dated June 30, 1994 by and between Borrower and the Guarantor; and
WHEREAS, the Borrower owns 100% of the capital stock of the Guarantor; and
WHEREAS, the Guarantor benefits, financially and otherwise, from its
relationship with the Borrower; and
NOW THEREFORE, in consideration of the premises, and to induce the
Guaranteed Party to make any extension of credit or other financial
accommodation to the Borrower under the Credit Agreement, and in consideration
of any other accommodations, financial or otherwise, given or to be given or
continued by the Guaranteed Party to the Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereto
hereby acknowledge, the Guarantor and Guaranteed Party hereby agree as follows:
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GUARANTY
A. GUARANTY. (a) The Guarantor unconditionally and absolutely guarantees to
the Guaranteed Party the full and prompt payment and performance when due
(whether at maturity or by reason of acceleration, demand, mandatory prepayment,
the provisions of Section 1(b) below, or otherwise) of any and all of the
Guaranteed Obligations (as hereinafter defined). "Guaranteed Obligations" shall
mean all indebtedness, liabilities, and other obligations of the Borrower due or
owing to, or in favor or for the benefit of, the Guaranteed Party, of every
kind, nature and description, direct or indirect, absolute or contingent,
independent, joint or several, due or not due, contractual or tortious,
liquidated or unliquidated, arising by reason of any agreement, instrument or
other document or by operation of law or otherwise, and whether now existing or
hereafter arising, and whether or not incurred after other Guaranteed
Obligations have been paid (whether in full or in part), and whether or not now
contemplated, including without limitation all principal, interest,
reimbursement obligations and costs and fees (including, without limitation, all
attorneys' fees and disbursements), and all amounts owed pursuant to any
indemnification provisions. The Guaranteed Obligations shall include, but shall
not be limited to, (i) all present and future indebtedness, liabilities and
other obligations under, arising out of or otherwise relating to the Credit
Agreement, the Note (as defined in the Credit Agreement), or any other Financing
Document (as defined in the Credit Agreement), including without limitation all
principal, interest and costs and fees (including, without limitation, all
attorneys' fees and disbursements) and also any and all overadvances or
overdrafts.
(b) In addition to, and not in any way in limitation of, any other event(s)
or circumstance(s) pursuant to which any or all of the Guaranteed Obligations
shall or may become due, all Guaranteed Obligations shall, for purposes of this
Guaranty Agreement, be deemed and considered due upon any Act of Insolvency (as
defined below). "Act of Insolvency" shall mean the commencement of any case,
proceeding or other action, whether voluntary or involuntary, under any
bankruptcy, insolvency, receivership, reorganization, liquidation, arrangement,
composition, readjustment or similar law, whether state or federal, with respect
to the Borrower, the Guarantor or any other Person (as defined in the Credit
Agreement) liable for any or all of the Guaranteed Obligations, or the Borrower,
Guarantor or any such Person shall make an assignment for the benefit of
creditors, generally not be paying its debts when they become due or admit in
writing such Person's inability to pay such Person's debts as they become due.
2. DUE ON DEMAND; NO DEDUCTION IN CONNECTION WITH PAYMENT. All obligations
of the Guarantor under Section 1 above are payable on demand by the Guaranteed
Party, without the need to first take action against the Borrower or any other
Person (as defined in the Credit Agreement) or any collateral. All payments due
the Guaranteed Party hereunder (whether under Section 1 or otherwise), shall be
made by the Guarantor without any deduction whatsoever, including, but not
limited to, any deduction for any set-off, recoupment, or counterclaim.
3. UNCONDITIONAL NATURE OF GUARANTOR'S OBLIGATIONS; NO RELEASE OF
GUARANTOR; JOINT AND SEVERAL. (a) The Guarantor's obligations hereunder (i) are
absolute and unconditional, and (ii) constitute a guaranty of payment and not
merely a guaranty of collection. THE OBLIGATIONS OF THE GUARANTOR HEREUNDER
SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL THE GUARANTOR BE
DISCHARGED FROM ANY
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THEREOF, FOR ANY REASON WHATSOEVER (other than, subject to Section 5, the full
payment and performance of the Guaranteed Obligations and termination of all
credit facilities between the Lender and the Borrower), including, but not
limited to, any or all of the following (and whether or not any or all of the
following shall have occurred or failed to occur once or more than once or in
whole or in part, and whether or not the Guarantor shall have received notice
thereof or assented thereto):
(i) any increase or decrease in principal or any interest rate, any
extension, indulgence, postponement, renewal, waiver, amendment or other
modification with respect to any of the Guaranteed Obligations or any
agreement or instrument related thereto, or the taking or the omission of
any of the actions referred to in any such agreement or instrument or
otherwise;
(ii) any addition, substitution, exchange, sale, surrender, or release
of any collateral or other property;
(iii) any failure, omission or delay (whether any of the foregoing is
intentional or unintentional) to attach, grant, perfect or record any
security interest, mortgage, assignment or other Lien (as defined in the
Credit Agreement) in or on any collateral, or any failure to record any
document;
(iv) any failure, omission or delay (whether any of the foregoing is
intentional or unintentional) in enforcing, assenting to or exercising any
right, remedy or power;
(v) any realization upon or other dealings with any collateral or
other property;
(vi) the addition, release (whether by contract, operation of law or
otherwise), discharge, death, bankruptcy or insolvency of any Person
primarily, secondarily or otherwise liable for any of the Guaranteed
Obligations, or any settlement or compromise of any of the Guaranteed
Obligations or with respect to any such Person;
(vii) any direction of application of payment with respect to, or any
subordination of the right to payment of or of any collateral for, any
Guaranteed Obligations or for any guaranty of same; or
(viii) ANY OTHER ACT OR FAILURE TO ACT WHICH (A) VARIES THE RISK OF
THE GUARANTOR HEREUNDER OR (B), BUT FOR THE PROVISIONS HEREOF, WOULD, AS A
MATTER OF STATUTE OR RULE OF LAW OR EQUITY, OPERATE TO REDUCE, LIMIT OR
TERMINATE THE OBLIGATIONS OF THE GUARANTOR HEREUNDER OR DISCHARGE THE
GUARANTOR FROM ANY THEREOF.
Guaranteed Party shall have no obligation to take, to collect or to protect
any collateral (or other property) or any income thereon, nor to preserve any
rights against prior or other parties, and the Guaranteed Party may proceed
under this Guaranty immediately upon Borrower's default without resorting to or
regard to any action against or with respect to the Borrower, any collateral or
any other guaranty or source of payment.
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(b) Settlement of any claim by the Guaranteed Party against the
Borrower, whether or not in any proceeding, and whether voluntary or
involuntary, shall not reduce the amount due under this Agreement except to
the extent (subject to Section 5 hereof) of the amount actually paid by
Borrower and legally retained by the Guaranteed Party in connection with
the settlement.
(c) The invalidity, irregularity, or unenforceability of all or any
part of the Guaranteed Obligations or any agreement or instrument relating
thereto, or the lack of validity, enforceability, perfection, impairment or
loss of any Liens granted in connection therewith, whether caused by any
action or inaction of the Guaranteed Party, or otherwise, shall not affect,
impair, or be a defense to the Guarantor's obligations under this
Agreement.
(d) The obligations of the Guarantor hereunder are joint and several
with any other guarantor (if any) of any of the Guaranteed Obligations, and
the obligations of the Guarantor hereunder shall not be affected by any
event or circumstance with respect to any such other guarantor.
(e) In addition to, and in no way in limitation or impairment of, the
Guarantor's other obligations under this Agreement, the Guarantor hereby
covenants to take all actions (or non-action, if applicable) necessary so
that the Borrower (and, to the extent applicable, TFCI) performs all
obligations under the Credit Agreement relating to the Guarantor or its
assets or other properties. As part of this, Guarantor covenants to not
permit any Lien (as defined in the Credit Agreement) on the Plainview Real
Estate (as defined in the Credit Agreement) and to not sell or otherwise
transfer the Plainview Real Estate (or any part thereof).
4. CERTAIN WAIVERS. The Guarantor waives (to the fullest extent permitted
by applicable law): (i) presentment, diligence, protest, demand, notice of
demand, notice of acceptance or reliance, notice of the creation of any
Guaranteed Obligation in reliance hereon, notice of non-payment, notice of
dishonor, notice of protest, and all other notices (except notices, if any,
expressly provided for herein), (ii) any requirement that any right, remedy or
power first be exercised or any action first be taken against the Borrower, any
other guarantor or any collateral for any of the Guaranteed Obligations or for
any guaranty prior to the Guaranteed Party exercising its rights, remedies or
powers, or taking any other action, with respect to the Guarantor; (iii) any
right to defer or modify Guarantor's obligations hereunder by reason of any Act
of Insolvency; (iv) notice of disposition of any collateral; (v) any defense
based upon, arising out of or in any way related to (a) any claim that any sale
or other disposition of any collateral for any of the Guaranteed Obligations was
not conducted in a commercially reasonable manner, or that otherwise such sale
or disposition was not in compliance with Applicable Law (as defined in the
Credit Agreement), or (b) any claim that any election of remedies by the
Guaranteed Party, or any other action of Guaranteed Party, impaired, reduced,
released or extinguished any rights, including, but not limited to, any rights
of subrogation, exoneration, indemnity, reimbursement and contribution, that the
Guarantor might otherwise have had against the Borrower or any other guarantor
or against any collateral; and (vi) ANY AND ALL OTHER DEFENSES, WHETHER ARISING
UNDER ANY STATUTE OR AT LAW OR IN EQUITY, THAT WOULD, BUT FOR THIS CLAUSE (vi),
BE AVAILABLE TO THE GUARANTOR AS A DEFENSE AGAINST OR REDUCTION OF ANY
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OR ALL OF ITS LIABILITIES AND OTHER OBLIGATIONS HEREUNDER INCLUDING WITHOUT
LIMITATION ANY DEFENSES OF A SURETY OR IMPAIRMENT OF COLLATERAL.
5. CONTINUING LIABILITY OF GUARANTOR. If, after receipt of any payment of
all or any part of the Guaranteed Obligations, the Guaranteed Party is
compelled, required or ordered or agrees, whether for settlement purposes or
otherwise, to surrender such payment to any Person for any reason (including,
without limitation, a determination that such payment is void or voidable as a
preference or fraudulent conveyance, an impermissible setoff, or a diversion of
trust funds), then this Agreement shall continue in full force and effect, and
the Guarantor shall be fully liable for hereunder, and shall indemnify, defend
and hold harmless the Guaranteed Party with respect to, the full amount so
surrendered. The provisions of this paragraph shall survive the cancellation,
release or other termination of this Agreement or any other agreement or
instrument, the release of any collateral or other property and/or any other
action which the Guaranteed Party may have taken, whether in reliance upon
receipt of such payment or otherwise.
6. SUBORDINATION OF RIGHTS OF SUBROGATION, ETC. The Guarantor hereby
unconditionally subordinates, to the prior and indefeasible payment in full of
all Guaranteed Obligations, any rights, claims or remedies that the Guarantor
may at any time have against the Borrower (or any other guarantor or other
Person liable for any of the Guaranteed Obligations) or any collateral for any
of the Guaranteed Obligations, and which rights, claims or remedies arise under
or otherwise relate to this Agreement or any other Financing Document and/or
arise from or otherwise relate to the payment or other performance hereunder or
thereunder including, but not limited to, rights, claims or remedies of
subrogation, indemnity, exoneration, participation, reimbursement or
contribution and whether any such rights, claims or remedies arise in equity,
under contract, by statute, under common law or otherwise, and Guarantor hereby
agrees not to assert any such rights, claims or remedies unless and until the
Guaranteed Obligations are so paid in full and all credit arrangements between
the Borrower and the Guaranteed Party are terminated. In addition, if any such
rights, claims or remedies result in the Lender being an "insider" of the
Borrower for purposes of the Federal Bankruptcy Code (or other similar law),
such rights, claims or remedies are hereby waived.
7. CREDIT DECISION. The Guarantor has independently, and without reliance
on any information supplied by the Guaranteed Party, taken, and will continue to
take, whatever steps Guarantor deems necessary to evaluate the financial
condition and affairs of the Borrower, and the Guaranteed Party shall have no
duty to advise the Guarantor of information at any time known to Guaranteed
Party regarding such financial condition or affairs.
8. CONTINUANCE OF GUARANTY. This is a continuing guaranty and shall remain
in full force and effect, and shall be binding upon the Guarantor unless written
notice sent by registered or certified mail, addressed to Fleet National Bank,
One Landmark Square, Stamford, Connecticut 06901, Attention: Asset-Based
Lending, of its revocation as to future Guaranteed Obligations shall actually be
received by the Guaranteed Party at least five (5) days prior to the date set
for such revocation in such notice. No such revocation shall release the
Guarantor, or affect in any manner the Guaranteed Party's rights, remedies or
powers under this Agreement, with respect to any Guaranteed Obligation
(including without limitation any renewal, modification, substitution,
replacement, extension, refunding or other refinancing thereof) arising prior to
such date of
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revocation (and including without limitation, for the avoidance of doubt, any
and all reimbursement obligations relating to any letter of credit issued prior
to the date of revocation and all loans made prior to such date (both principal
and interest (whether such interest accrues before or after such date) and all
collection and other costs and expenses (whenever accrued) relating in any way
to any such Guaranteed Obligation). The revocation by any other guarantor of
his/her/its guaranty shall not revoke or otherwise affect any obligations of the
Guarantor hereunder. Guarantor has specifically considered the foregoing
termination provisions and agrees they are reasonable.
9. RIGHTS AND REMEDIES CUMULATIVE AND NOT EXCLUSIVE. All of the Guaranteed
Party's rights, remedies and powers hereunder shall be cumulative, and not
exclusive, and may be exercised singly or concurrently, and shall be in addition
to all other rights, remedies and powers of the Guaranteed Party under
Applicable Law (as defined in the Credit Agreement) or under any other
agreement, instrument or other document. Guaranteed Party may exercise any or
all such rights, remedies or powers at any time(s) in any order which the
Guaranteed Party chooses.
10. EXPENSES. The Guarantor shall pay, or reimburse the Guaranteed Party,
on demand, for all of the Guaranteed Party's costs and expenses (including
without limitation reasonable fees and disbursements of legal counsel,
appraisers, accountants, and other experts, employed or retained by the
Guaranteed Party) incurred in connection with protecting, preserving, defending,
exercising or enforcing this Agreement or any of the rights, powers or remedies
of the Guaranteed Party under this Agreement or in attempting to do any of the
foregoing.
11. NO WAIVERS OF RIGHTS; AMENDMENTS; WHEREAS CLAUSES. The Guaranteed Party
shall not by any act (except by a written instrument pursuant to the provisions
of this Section set forth below), delay, indulgence, omission or otherwise be
deemed to have waived any right, remedy or power hereunder or to have acquiesced
in any default or other breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Guaranteed
Party, any right, remedy or power shall operate as a waiver thereof. No single
or partial exercise of any right, remedy or power hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, remedy or
power. A waiver by the Guaranteed Party of any right, remedy or power hereunder
on any one occasion shall not be construed as, or constituted a bar to, any
right, remedy or power which the Guaranteed Party would otherwise have on any
future occasion. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed and delivered by the party sought to be charged. The
"Whereas" clauses in this Agreement shall form a substantive part of the
agreement of the parties and the Lender in entering into the Credit Agreement is
relying on the truth and accuracy of same.
12. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
Connecticut without regard to rules pertaining to conflicts of laws thereunder.
THE GUARANTOR HEREBY SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED IN THE STATE OF CONNECTICUT IN CONNECTION WITH
ANY ACTION OR PROCEEDING ARISING OUT OF OR OTHERWISE RELATED TO OR OTHERWISE IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT AND WAIVES ANY
OBJECTION GUARANTOR MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
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INCONVENIENT COURT AND AGREES NOT TO PLEAD SAME. GUARANTOR AGREES THAT SERVICE
OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO THE GUARANTOR AT THE ADDRESS OF THE GUARANTOR SET
FORTH IN THE FIRST PARAGRAPH HEREOF OR SUCH OTHER ADDRESS OF WHICH THE
GUARANTEED PARTY SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 18 BELOW.
GUARANTOR AGREES THAT NOTHING CONTAINED HEREIN SHALL EFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
OF THE GUARANTEED PARTY (OR ITS SUCCESSORS OR ASSIGNS) TO BRING ANY LEGAL ACTION
OR PROCEEDING IN ANY OTHER JURISDICTION.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
14. BINDING NATURE. This Agreement shall be binding upon the Guarantor and
Guarantor's successors, assigns, heirs and representatives and shall inure to
the benefit of and be enforceable by the Guaranteed Party, and Guaranteed
Party's successors, assigns and representatives. The Guaranteed Party may sell
or assign any or all of the Guaranteed Obligations, and any of its rights and
obligations under any agreement or instrument, evidencing, governing, securing
or otherwise relating thereto, and the transferee shall have the same rights
hereunder with respect to the assigned Guaranteed Obligations as had the
Guaranteed Party. Any successor to the Guaranteed Party (including without
limitation any successor by merger) shall succeed to the full rights of the
Guaranteed Party hereunder. The Guarantor may not assign the Guarantor's rights
or duties hereunder without the prior written consent of the Lender.
15. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in such jurisdiction, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. INTEGRATION. This Agreement represents the agreement of the Guarantor
with respect to the subject matter hereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof, AND THERE ARE NO
PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE GUARANTEED PARTY
RELATIVE TO THE SUBJECT MATTER HEREOF THAT ARE NOT EXPRESSLY SET FORTH OR
REFERRED TO HEREIN.
17. LIEN; RIGHT OF SET-OFF. Guarantor hereby grants to the Guaranteed Party
a lien and right of set-off for all of the Guarantor's liabilities or other
obligations to the Guaranteed Party, whether hereunder or otherwise, upon and
against all property of the Guarantor which may now be, or may in the future
come into, the possession, custody or control of the Guaranteed Party, or be in
transit to the Guaranteed Party, including but not limited to deposits (general
or special, time or demand, matured or unmatured), credits, securities,
instruments, or the proceeds thereof. The Guaranteed Party may at any time
(whether or not Guaranteed Party has made demand hereunder) set-off and apply
such property or any part thereof to any of the Guarantor's liabilities or other
obligations to the Guaranteed Party, whether under this Agreement or otherwise,
and whether or not any or all
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such liabilities or other obligations are matured at the time of such set-off or
application, even if effecting such set-off or application results in a loss or
reduction of interest or the imposition of a penalty applicable to the early
withdrawal of time deposits.
18. NOTICES. Notices by one party to the other hereunder shall be in
writing, and shall be deemed to have been duly given or made when delivered by
hand, or one Business Day (as defined in the Credit Agreement) after being sent
by overnight mail by Federal Express or other nationally recognized overnight
courier service, or four Business Days after being deposited in the mail, first
class postage prepaid, in each case addressed to such other party at the address
set forth in the first paragraph hereof. Either party may change its address for
purposes of this paragraph by written notice to the other party sent in the
manner set forth in this Section. Anything contained herein to the contrary, any
notices to the Guaranteed Party referred to in Section 8 above are to be sent in
accordance with the provisions thereof and shall only be deemed given when
actually received.
19. NO RULE OF STRICT CONSTRUCTION; NUMBER AND GENDER. Guarantor
acknowledges that Guarantor and Guarantor's counsel have had an opportunity to
review this Agreement and no rule of strict construction shall be used against
the Guaranteed Party. Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number includes the plural,
and vice versa.
20. INSURANCE COLLATERAL. As security for its obligations hereunder, the
Guarantor hereby collaterally assigns to the Guaranteed Party all insurance
(including casualty) proceeds with respect to the Plainview Real Estate (or any
part thereof). In the event of any casualty or other loss with respect to the
Plainview Real Estate (or part thereof), the insurance proceeds shall be dealt
with and applied in the same manner as insurance proceeds with respect to
Collateral (as defined in the Credit Agreement) are dealt with and applied
pursuant to Section 4.3 of the Credit Agreement, the provisions of which Section
are hereby incorporated by reference as if fully stated herein (with such
conforming changes as shall be necessary, for such incorporation by reference
including (i) "Collateral" shall mean the Plainview Real Estate (or applicable
portion thereof) and (ii) applicable references to "Borrower" or "TFCI", as the
case may be, shall refer to the Guarantor).
21. CERTAIN REPRESENTATIONS AND COVENANTS. IN ORDER TO INDUCE THE
GUARANTEED PARTY TO MAKE EXTENSIONS OF CREDIT UNDER THE CREDIT AGREEMENT, THE
GUARANTOR HEREBY REPRESENTS AND WARRANTS TO THE GUARANTEED PARTY THAT (I) THIS
AGREEMENT IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE GUARANTOR,
ENFORCEABLE AGAINST THE GUARANTOR IN ACCORDANCE WITH ITS TERMS, (II) THE
EXECUTION, DELIVERY AND PERFORMANCE BY THE GUARANTOR OF THIS AGREEMENT HAS BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE AND, IF REQUIRED, STOCKHOLDER ACTION,
(III) THE EXECUTION, DELIVERY AND PERFORMANCE BY THE GUARANTOR OF THIS AGREEMENT
IS AND WILL BE WITHIN THE GUARANTOR'S POWERS, CORPORATE AND OTHERWISE, AND DOES
NOT AND WILL NOT VIOLATE OR BREACH ANY STATUTE, REGULATION, OR OTHER APPLICABLE
LAW (AS DEFINED IN THE CREDIT AGREEMENT) OR THE GUARANTOR'S CERTIFICATE OF
INCORPORATION OR BY-LAWS.
22. WAIVER OF TRIAL BY JURY; CHAPTER 903(A) WAIVER; WAIVER OF CONSEQUENTIAL
DAMAGES.
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(a) THE GUARANTEED PARTY AND THE GUARANTOR EACH VOLUNTARILY AND KNOWINGLY
WAIVE TRIAL BY JURY AND THEIR RESPECTIVE RIGHTS THERETO IN ANY ACTION OR
PROCEEDING OF ANY KIND TO WHICH THEY ARE BOTH PARTIES AND THAT IN ANY WAY ARISES
UNDER OR OUT OF OR IS OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS
AGREEMENT OR ANY RELATED AGREEMENT OR INSTRUMENT (INCLUDING WITHOUT LIMITATION
ANY FINANCING DOCUMENT).
(b) THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS AGREEMENT
IS A PART IS A "COMMERCIAL TRANSACTION" WITHIN THE MEANING OF CHAPTER 903A OF
THE CONNECTICUT GENERAL STATUTES, AS AMENDED, AND THAT ANY MONIES, PROPERTY OR
SERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION ARE NOT FOR PERSONAL, FAMILY
OR HOUSEHOLD PURPOSES. THE GUARANTOR KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT
WHICH GUARANTOR MIGHT HAVE TO A NOTICE AND A HEARING UNDER SECTIONS 52-278A TO
52-278G, INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR OTHER
APPLICABLE FEDERAL OR STATE LAW, IN THE EVENT THE GUARANTEED PARTY (OR ITS
SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS
AGREEMENT.
(c) GUARANTOR HEREBY FURTHER WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT GUARANTOR MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL
PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR OTHERWISE RELATED TO THIS
AGREEMENT OR ANY OTHER FINANCING DOCUMENT ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first written above.
WITNESSES: AVEST, INC.
/S/ EDWARD A. WEISS By: /S/ IRENE MARCIC
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Name: Edward A. Weiss Name: Irene Marcic
Title: Vice President
Fleet National Bank
/S/ EDWARD A. WEISS By: /S/ ANTHONY MCKIERNAN
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Name: Edward A. Weiss Name: Anthony M. McKiernan
Title: Assistant Vice-President