EXHIBIT 10.12
UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, and in order to induce MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC. ("MLBFS") to advance moneys or extend or continue to extend credit
or lease property to or for the benefit of, or modify its credit relationship
with, or enter into any other financial accommodations with ASPECT SYSTEMS, INC.
F/K/A ASPECT SEMIQUIP INTERNATIONAL, INC., a corporation organized and existing
under the laws of the State of Arizona (with any successor in interest,
including without limitation, any successor by merger or by operation of law,
herein collectively referred to as "Customer") under: (a) that certain TERM LOAN
AND SECURITY AGREEMENT DATED AS OF MAY 14, 2004 between MLBFS and Customer (the
"Loan Agreement"), (b) any "Loan Documents", as that term is defined in the Loan
Agreement including, without limitation, the NOTE(S) incorporated by reference
in the Loan Agreement, and (c) all present and future amendments, restatements,
supplements and other evidences of any extensions, increases, renewals,
modifications and other changes of or to the Loan Documents (collectively, the
"Guaranteed Documents"), the undersigned ("Guarantor") hereby unconditionally
guarantees to MLBFS: (i) the prompt and full payment when due, by acceleration
or otherwise, of all sums now or any time hereafter due from Customer to MLBFS
under the Guaranteed Documents, (ii) the prompt, full and faithful performance
and discharge by Customer of each and every other covenant and warranty of
Customer set forth in the Guaranteed Documents, and (iii) the prompt and full
payment and performance of all other indebtedness, liabilities and obligations
of Customer to MLBFS, howsoever created or evidenced, and whether now existing
or hereafter arising (collectively, the "Obligations"). Guarantor further agrees
to pay all reasonable costs and expenses (including, but not limited to, court
costs and reasonable attorneys' fees) paid or incurred by MLBFS in endeavoring
to collect or enforce performance of any of the Obligations, or in enforcing
this Guaranty. Guarantor acknowledges that MLBFS is relying on the execution and
delivery of this Guaranty in advancing moneys to or extending or continuing to
extend credit to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of the Obligations shall have been fully and indefeasibly paid,
performed and discharged. Upon the occurrence and during the continuance of any
Event of Default under the Guaranteed Documents, any or all of the indebtedness
hereby guaranteed then existing shall, at the option of MLBFS, become
immediately due and payable from Guarantor (it being understood, however, that
upon the occurrence of any "Bankruptcy Event", as defined in the Guaranteed
Documents, all such indebtedness shall automatically become due and payable
without action on the part of MLBFS). Notwithstanding the occurrence of any such
event, this Guaranty shall continue and remain in full force and effect. To the
extent MLBFS receives payment with respect to the Obligations, and all or any
part of such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside, required to be repaid by MLBFS or is repaid by MLBFS
pursuant to a settlement agreement, to a trustee, receiver or any other person
or entity, whether under any Bankruptcy and/or otherwise (a "Returned Payment"),
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of such payment or repayment by MLBFS, and the
indebtedness or part thereof intended to be satisfied by such Returned Payment
shall be revived and continued in full force and effect as if said Returned
Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or impaired
by any of the following, any of which may be done or omitted by MLBFS from time
to time, without notice to or the consent of Guarantor: (a) any renewals,
amendments, modifications or supplements of or to any of the Guaranteed
Documents, or any extensions, forbearances, compromises or releases of any of
the Obligations or any of MLBFS' rights under any of the Guaranteed Documents;
(b) any acceptance by MLBFS of any collateral or security for, or other
guarantees of, any of the Obligations; (c) any failure, neglect or omission on
the part of MLBFS to realize upon or protect any of the Obligations, or any
collateral or security therefore, or
to exercise any lien upon or right of appropriation of any moneys, credits or
property of Customer or any other guarantor, possessed by or under the control
of MLBFS or any of its affiliates, toward the liquidation or reduction of the
Obligations; (d) any invalidity, irregularity or unenforceability of all or any
part of the Obligations, of any collateral security for the Obligations, or the
Guaranteed Documents; (e) any application of payments or credits by MLBFS; (f)
the granting of credit from time to time by MLBFS to Customer in excess of the
amount set forth in the Guaranteed Documents; or (g) any other act of commission
or omission of any kind or at any time upon the part or MLBFS or any of its
affiliates or any of their respective employees or agents with respect to any
matter whatsoever. MLBFS shall not be required at any time, as a condition of
Guarantor's obligations hereunder, to resort to payment from Customer or other
persons or entities whatsoever, or any of their properties or estates, or resort
to any collateral or pursue or exhaust any other rights or remedies whatsoever.
No release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor or any other guarantor, unless
and until all of the Obligations shall have been indefeasibly fully paid and
discharged. Guarantor expressly waives presentment, protest, demand, notice of
dishonor or default, notice of acceptance of this Guaranty, notice of
advancement of funds under the Guaranteed Documents and all other notices and
formalities to which Customer or Guarantor might be entitled, by statute or
otherwise, and, so long as there are any Obligations or MLBFS is committed to
extend credit to Customer, Guarantor waives any right to revoke or terminate
this Guaranty without the express written consent of MLBFS.
So long as there are any Obligations, Guarantor shall not have any claim, remedy
or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time during the
continuance of an Event of Default under the Loan Agreement or any other of the
Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elicit, all cash, credits, deposits, accounts,
financial assets, investment property, securities and any other property of
Guarantor which is in transit to or in the possession, custody or control of
MLBFS or Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S"), or any
of their respective agents, bailees or affiliates. Guarantor hereby collaterally
assigns and grants to MLBFS a continuing security interest in all such property
as additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the Uniform Commercial Code.
Guarantor agrees to furnish to MLBFS such financial information concerning
Guarantor as may be required by any of the Guaranteed Documents or as MLBFS may
otherwise from time to time reasonably request. Guarantor further hereby
irrevocably authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all financial and other
information about Guarantor.
Guarantor warrants and agrees that: (a) unless clearly stated or noted, no
material assets shown on any financial statements of Guarantor heretofore or
hereafter furnished to MLBFS are or will be held in an irrevocable trust,
pension trust, retirement trust, IRA or other trust or form of ownership exempt
from execution by creditors of Guarantor; and, (b) except upon the prior written
consent of MLBFS, which consent will not be unreasonably withheld, Guarantor
will not hereafter transfer any material assets of Guarantor to any trust or
third party if the effect thereof will be to cause such assets to be exempt from
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execution by creditors of Guarantor (excluding, however, normal and reasonable
contributions to pension plans, retirement plans, etc., and IRA rollovers).
No delay on the part of MLBFS in the exercise of any right or remedy under the
Guaranteed Documents, this Guaranty or any other agreement shall operate as a
waiver thereof, and, without limiting the foregoing, no delay in the enforcement
of any security interest, and no single or partial exercise by MLBFS of any
right or remedy shall preclude any other or further exercise thereof or the
exercise of any other right or remedy. This Guaranty may be executed in any
number of counterparts, each of which counterparts, once they are executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Guaranty. This Guaranty
shall be binding upon Guarantor and Guarantor's heirs and personal
representatives, and shall inure to the benefit of MLBFS and its successors and
assigns.
This Guaranty shall be governed by the laws of the State of Illinois. WITHOUT
LIMITING THE RIGHT OF MLBFS TO ENFORCE THIS GUARANTY IN ANY JURISDICTION AND
VENUE PERMITTED BY APPLICABLE LAW: (I) GUARANTOR AGREES THAT THIS GUARANTY MAY
AT THE OPTION OF MLBFS BE ENFORCED BY MLBFS IN EITHER THE STATE OF ILLINOIS OR
IN ANY OTHER JURISDICTION WHERE GUARANTOR, CUSTOMER OR ANY COLLATERAL FOR THE
OBLIGATIONS OF CUSTOMER MAY BE LOCATED, (II) GUARANTOR IRREVOCABLY SUBMITS
ITSELF TO JURISDICTION IN THE STATE OF ILLINOIS AND VENUE IN ANY STATE OR
FEDERAL COURT IN THE COUNTY OF COOK FOR SUCH PURPOSES, AND (III) GUARANTOR
WAIVES ANY AND All RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND THE
CONVENIENCE OF ANY SUCH FORUM AND ANY AND ALL RIGHTS TO REMOVE SUCH ACTION FROM
STATE TO FEDERAL COURT. GUARANTOR FURTHER WAIVES ANY RIGHTS TO COMMENCE ANY
ACTION AGAINST MLBFS IN ANY JURISDICTION EXCEPT IN THE COUNTY OF COOK AND STATE
OF ILLINOIS. MLBFS AND GUARANTOR HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES AGAINST THE OTHER PARTY WITH RESPECT TO ANY MATTER RELATING TO,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY AND/OR ANY OF THE
TRANSACTIONS WHICH ARE THE SUBJECT MATTER OF THIS GUARANTY. GUARANTOR FURTHER
WAIVES THE RIGHT TO BRING ANY NON-COMPULSORY COUNTERCLAIMS. 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 only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by Guarantor and an officer of
MLBFS.
Dated as of May 14, 2004.
Guarantor:
/s/ Douglas N. Dixon
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Douglas N. Dixon
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