GUARANTY
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1.
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Identification.
This Guaranty (the “Guaranty”)
is made as of the ___ day of November, 2007 by _______________, a
_________ corporation with its principal place of business at
________________________ (the “Guarantor”)
in favor of RBS Citizens, National Association, having
a lending office at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Lender”).
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| 2. |
Background
and Reasons for Guaranty.
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2.1
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Loan.
On
the date hereof, National Investment Managers Inc., a Florida corporation,
having an address of 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX
00000
(the “Borrower”)
executed and delivered (a) a certain Term Promissory Note of even
date
herewith from the Borrower to the Lender in the maximum principal
amount
of up to $13,000,000.00 and (b) a certain Revolving Line of Credit
Note of
even date herewith from the Borrower to the Lender in the maximum
principal amount of $2,000,000.00 (together, the “Notes”).
The obligations of the Borrower are further evidenced by a certain
Revolving Line of Credit and Term Loan Agreement of even date herewith
by
and between the Borrower and Lender (the “Loan
Agreement”).
The Notes are secured by, among other things, a certain Security
Agreement
of even date herewith from the Borrower to Lender (the “Security
Agreement”).
In addition, the obligations of Guarantor under this Guaranty shall
be
secured by a certain Security Agreement of even date herewith from
Guarantor to Lender (the “Guarantor
Security Agreement”)
granting to Lender a first priority security interest in all assets
of
Guarantor. The Notes, the Loan Agreement, the Security Agreement,
this
Guaranty, the Guarantor Security Agreement, the Guaranties of the
other
Guarantors and all other documents executed in connection with or
related
to such documents are sometimes collectively referred to herein as
the
“Loan
Documents”.
The obligations evidenced by the Loan Documents are sometimes collectively
referred to herein as the “Loans”.
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings as set forth in the Loan
Agreement.
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2.2
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2.3
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Consideration
to Guarantor.
Guarantor desires to execute and deliver the Guaranty to Lender because
the Borrower has a substantial interest in Guarantor and Guarantor
will
receive a direct financial benefit from the credit extended to
Borrower.
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| Guaranty by ABR Advisors, Inc. |
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1 of 11
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3.
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Guaranty.
Guarantor, in consideration of Lender entering into the Loan Documents
and
other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and for the purpose of inducing Lender
to
enter into the Loan Documents, hereby irrevocably and unconditionally
guarantees to Lender (a) the full, punctual and prompt payment of
all sums
payable under the terms of the Notes and the other Loan Documents,
whether
at maturity or by acceleration or otherwise, in immediately available
coin
and currency of the United States which is legal tender for the payment
of
all public and private debts; (b) the performance of all of Borrower’s
other obligations under the Notes and the other Loan Documents; and
(c)
all other obligations of every kind and description now existing
or
hereafter arising, direct or indirect, absolute or contingent, secured
or
unsecured, matured or unmatured, primary
or secondary, of Borrower to Lender including, without limitation,
any
Hedging Obligations (as defined in Rider
A
to
the Notes). The obligations referenced in subsections (a), (b) and
(c)
above are collectively referred to herein as the “Guaranteed
Obligations”.
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4.
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Warranties
and Representations.
Guarantor hereby warrants and represents to Lender
that:
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4.1
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The
Board of Directors of the Guarantor have determined the execution,
delivery and performance of this Guaranty to be necessary or convenient
to
the conduct, promotion or attainment of the business of the Borrower
and
the Guarantor, and to be in the best interests of the Guarantor and
in
pursuance of its corporate purposes as an integral part of the business
now conducted and proposed to be conducted by the Guarantor. The
Guarantor
expects to receive substantial direct and indirect benefits from
the
making of the Loan to the Borrower. By virtue of the foregoing, after
considering the Guarantor’s probable liability hereunder, the Guarantor is
receiving at least reasonably equivalent value from Lender for its
guaranty and will not be rendered insolvent thereby; and after giving
effect to the transactions contemplated hereby, the Guarantor does
not,
and will not, have an unreasonably small capital for the conduct
of its
business and has, and will have, the ability to pay its debts from
time to
time incurred in connection therewith as such debts
mature.
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4.2
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The
execution, delivery, and performance by the Guarantor of this Guaranty
do
not and will not:
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(i)
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violate
any provision of, or require any filings, registration, consent or
approval under, any law, rule, regulation (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination
or
award presently in effect having applicability to the Guarantor or
the
Borrower;
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Guaranty
by ABR Advisors, Inc.
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Page 2
of 11
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| (ii) |
result
in a breach of or constitute a default or require any consent
under any
indenture or loan or credit agreement or any other agreement,
lease or
instrument to which the Guarantor is a party or by which Guarantor
or any
of its properties may be bound or
affected;
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(iii)
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result
in, or require, the creation or imposition of any lien, security
interest
or other encumbrance (other than as created hereunder), upon or with
respect to any of the properties now owned or hereafter acquired
by the
Guarantor; or
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(iv)
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cause
the Guarantor to be in default under any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award
or any
such indenture, agreement, lease or
instrument.
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4.3
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The
Guarantor is a corporation duly organized, validly existing and in
good
standing under the laws of the State of New York and has the legal
power
and authority to execute, deliver and fulfill its obligations set
forth in
this Guaranty. The Guarantor has all requisite corporate power to
own and
operate its properties and to carry on its business as now conducted
and
as proposed to be conducted and is duly qualified to do business
and in
good standing in such other jurisdictions where the failure to so
qualify
would have a material adverse effect on the Guarantor’s business,
prospects, operations or financial
condition.
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4.4
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This
Guaranty has been duly authorized by all necessary corporate action
and is
a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its
terms.
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4.5
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Any
and all financial statements and other financial data which have
previously been furnished to Lender with respect to Guarantor are
true and
correct in all material respects, fairly, completely and accurately
representing the financial condition of Guarantor as of the date
thereof
and, since the date thereof, there have been no additional borrowings
of
Guarantor, nor has there been any material adverse change in the
financial
condition of Guarantor; there are no legal proceedings, material
claims or
demands pending against, or to the best of Guarantor’s knowledge,
threatened against Guarantor or any of Guarantor’s assets; there are no
federal or state liens filed or threatened against Guarantor or any
of
Guarantor’s assets; and Guarantor is not in default or claimed default
under any agreement for borrowed
money.
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4.6
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Guarantor
has reviewed and approved the Loan Documents to be signed by Borrower
in
connection with the Loan, and each and every warranty and representation
made by Borrower in the Loan Documents is, to the best of Guarantor’s
knowledge, true and correct.
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| Guaranty by ABR Advisors, Inc. |
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4.7
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Guarantor
shall, within five (5) business days after receipt thereof, deliver
to
Lender copies of any notices of default served on such Guarantor
pursuant
to the terms of any other material agreement to which such Guarantor
is a
party.
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5.
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Primary
Nature of Guaranty.
In giving this Guaranty, Guarantor hereby acknowledges that this
Guaranty
is a guarantee of (i) performance by Borrower under the Loan Documents;
and (ii) payment and not of collection, and that the liability of
Guarantor hereunder is present, absolute, unconditional, continuing,
primary, direct and independent of the obligations of Borrower. Lender
shall not be required to pursue any other remedies before invoking
the
benefits of this Guaranty, including, without limitation, its remedies
under the Loan Documents. With regard to any rights which may accrue
to
Lender under or in connection with the Loan Documents, Lender may,
at its
option, look to Guarantor for the performance of the Guaranteed
Obligations to the extent provided herein, without having first commenced
any action or proceeding against Borrower or any other guarantor
or any
other parties or other security, and without having obtained any
judgment
against Borrower or against any other guarantor. Enforcement of Lender’s
rights against the security given by Borrower for the Loan shall
not
impair the right of Lender to enforce this Guaranty, Guarantor expressly
agreeing that any such action by Lender shall never operate as a
release
of Guarantor’s liability hereunder. Guarantor shall be conclusively bound,
in any jurisdiction, by the judgment rendered in any action by Lender
against Borrower or against any other guarantor, wherever instituted,
as
if Guarantor was a party to such action, even if not actually joined
as a
party.
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6.
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Continuing
Nature of Guaranty.
The liability of Guarantor shall remain and continue in full force
and
effect notwithstanding:
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6.1
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The
non-liability of Borrower for any reason whatsoever for the payment
and
performance of the Guaranteed Obligations or any part
thereof;
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6.2
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The
voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the property described in the Loan Documents,
marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment or any similar proceeding,
affecting Borrower or any of their
assets;
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| 6.3 |
The
assignment or transfer of the Notes or other Loan
Documents;
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6.4
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The
release of Borrower from the observance of any of the agreements,
covenants, terms or conditions contained in the Loan Documents by
operation of law;
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6.5
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Any
defenses or rights of set-off or counter-claims which Borrower may
have or
assert; or
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| Guaranty by ABR Advisors, Inc. |
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4 of 11
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6.6
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Any
failure by Lender to inform Guarantor of any facts Lender may now
or
hereafter know about Borrower, the Loan or the transactions contemplated
in connection therewith, it being understood and agreed that Lender
has no
duty so to inform; it being the intention hereof that Guarantor shall
remain liable hereunder until the Guaranteed Obligations of Borrower
shall
have been fully paid, performed and observed by Borrower, notwithstanding
any act, omission or thing that might otherwise operate as a legal
or
equitable discharge of Guarantor.
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7.
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Certain
Rights of Lender.
Lender may at any time and from time to time, with or without
consideration, without prejudice to any claim against Guarantor hereunder,
without in any way changing, releasing or discharging Guarantor from
its
liabilities and obligations hereunder and without notice to or the
consent
of Guarantor:
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7.1
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Exchange,
release or surrender all or any part of the security for the Loan
which
Lender may at any time hold;
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7.2
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Sell
all or any part of the security for the Loan and become the purchaser
thereof at any such sale;
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7.3
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Settle
or compromise with Borrower, or any other person primarily or secondarily
liable with Borrower, the Guaranteed Obligations or any renewal or
extension thereof;
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7.4
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Renew,
rearrange or extend the time, manner, place or terms of payment and
performance of the Guaranteed Obligations or any renewal or extension
thereof;
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7.5
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Forbear,
extend the time for, or grant indulgences with respect to the enforcement
of any of the Guaranteed Obligations or the exercise by Lender of
any
right or remedy contained in the Loan Documents or available under
applicable law, whether such enforcement be fully prosecuted or
otherwise;
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7.6
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Supplement,
change, amend, substitute, modify, alter or cancel the Guaranteed
Obligations or any other Loan Documents;
and
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7.7
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Take
other guarantees, collateral or security with respect to the Guaranteed
Obligations.
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| 8. |
Certain
Waivers by Guarantor.
Guarantor hereby waives:
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8.1
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Any
right to require Lender to (i) proceed against Borrower; (ii) proceed
against, exhaust or participate in any security held by Lender for
the
payment and performance of the Guaranteed Obligations, or (iii) pursue
any
other remedy that Lender has or to which it may be
entitled;
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| Guaranty by ABR Advisors, Inc. |
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8.2
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Notice
of the acceptance of this Guaranty, presentment, demand, protest
and
notice of protest, nonpayment, default or dishonor of the Guaranteed
Obligations or any renewal or extension thereof and any and all other
rights and remedies now or hereafter accorded to guarantors by applicable
law;
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8.3
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Diligence
on the part of Lender in the collection of the monetary sums included
in
the Guaranteed Obligations, notice of intention to accelerate the
maturity
of any of the Guaranteed Obligations, notice of the failure of Borrower
to
pay or perform all or any of the Guaranteed Obligations in a timely
manner
and diligence on the part of Lender in preserving the liability of
any
person on any of the Guaranteed Obligations;
and
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8.4
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Any
right that Guarantor has or to which Guarantor may be entitled to
cause a
marshaling of Borrower’s assets.
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9.
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No
Waiver by Lender.
No failure, omission or delay on the part of Lender in exercising
any
rights hereunder or in taking any action to collect or enforce payment
or
performance of the Guaranteed Obligations or in enforcing observance
or
performance of any agreement, covenant, term or condition to be performed
or observed under the Loan Documents, either against Borrower or
any other
person liable therefor, shall operate as a waiver of any such right
or in
any manner prejudice the rights of Lender against
Guarantor.
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10.
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Subordination
of Subrogation.
Guarantor hereby unconditionally and irrevocably agrees that it will
not
at any time exert or exercise against Borrower, and does hereby
subordinate any right of or claim to subrogation, reimbursement,
indemnity, contribution or payment (including any right to proceed
upon
any collateral pledged by Borrower to Guarantor) for or with respect
to
any amounts which Guarantor may pay or be obligated to pay to Lender,
including, without limitation, any right to enforce any remedy which
Guarantor now or hereafter shall have against Borrower by reason
of
obligations which Guarantor may perform, satisfy or discharge under
or
with respect to this Guaranty. The payment of any amounts due with
respect
to any indebtedness of the Borrower now or hereafter held by the
Guarantor
is hereby subordinated to the prior payment in full of the Guaranteed
Obligations, provided that so long as no default in the payment or
performance of the Guaranteed Obligations has occurred and is continuing,
or no demand for payment of any of the Guaranteed Obligations has
been
made that remains unsatisfied, the Borrower may make, and the Guarantor
may demand and accept, payments of principal and interest on such
subordinated indebtedness. The Guarantor agrees that after the occurrence
of any default in the payment or performance of the Guaranteed
Obligations, the Guarantor will not demand, xxx for or otherwise
attempt
to collect any such indebtedness of the Borrower to the Guarantor
until
the Guaranteed Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor
as
trustee for the Lender and be paid over to the Lender on account
of the
Guaranteed Obligations without affecting in any manner the liability
of
the Guarantor under the other provisions of this
Guaranty.
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| Guaranty by ABR Advisors, Inc. |
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11.
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Financial
Information and Condition.
Guarantor shall furnish to Lender all such financial information
as set
forth in the Loan Agreement. At any time during the term of the Loan,
Guarantor shall provide Lender with any additional financial information
reasonably requested by Lender. Guarantor shall immediately notify
Lender
of any material adverse change in the financial condition of the
Guarantor.
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12.
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Right
of Set-Off.
Upon the occurrence of a default under the Loan Documents, Lender
is
hereby authorized, at any time and from time to time, without notice
to
Guarantor or to any other person, any such notice being hereby expressly
waived, to set-off, appropriate and apply any and all deposits (general
or
special), and any other indebtedness at any time held or owing by
Lender
to or for the credit or the account of Guarantor (collectively, the
“Deposits”),
against and on account of any obligations and liabilities of Guarantor
hereunder, although said obligations and liabilities, or any of them,
shall be contingent or unmatured. The Guarantor hereby grants to
Lender a
security interest in such Deposits.
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13.
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Mandatory
Refunds.
If, for any reason, any payment to Lender on account of the Guaranteed
Obligations is required to be refunded to Borrower, or paid over
to any
other party, including, without limitation, by reason of the operation
of
bankruptcy laws now or hereafter enacted, Guarantor agrees to pay
the
amounts so required to be refunded or paid over upon demand, it being
acknowledged and agreed that the Guaranteed Obligations shall not
be
treated as having been discharged by reason of any payment to Lender
giving rise to an obligation on the part of Lender to repay the same,
and
this Guaranty shall be treated as remaining in full force and effect
with
respect to any such repayment so made by Lender, as well as for any
amounts not previously paid to Lender on account of the Guaranteed
Obligations.
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14.
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Multiple
Guarantors.
If there is more than one guarantor of the Guaranteed Obligations:
(a) the
obligations, covenants, warranties and representations of each guarantor
shall be joint and several; (b) the granting of a written release
of
liability hereunder of less than all of the guarantors shall be effective
with respect to the liability hereunder of only those specifically
so
released, but shall in no way affect the liability hereunder of any
guarantor not so released; and (c) each guarantor waives any right
to
require Lender to proceed against any other guarantor. Any prior
or
subsequent guaranty to Lender shall not be deemed to be in lieu of
or to
supersede or terminate this Guaranty, but shall be construed as an
additional or supplementary guaranty unless otherwise expressly provided
herein.
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| Guaranty by ABR Advisors, Inc. |
Page 7
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15.
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Default.
Failure of Guarantor to keep, observe or perform any term, covenant
or
agreement made under this Guaranty by Guarantor or under any other
obligations of Guarantor to Lender after the expiration of any applicable
cure period shall constitute an Event of Default under this Guaranty
and
under the Loan Documents, whether or not provision therefor is made
in
such documents. In addition to the Events of Default described in
this
Section 15, the following events, after the expiration of any applicable
grace periods, shall also constitute “Events of Default” under this
Guaranty:
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15.1
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If
any representation or warranty by the undersigned or in any writing
furnished by the undersigned in connection with or pursuant to this
Guaranty shall be false in any material respect with respect to the
undersigned on the date as of which made;
or
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15.2
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If
the Guarantor makes an assignment for the benefit of creditors;
or
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15.3
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If
the Guarantor petitions or applies to any tribunal for the appointment
of
a trustee or receiver of the business, estate or assets or of any
substantial portion of the business, estate or assets of the undersigned,
or commences any proceedings relating to the Guarantor under any
bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect; or
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15.4
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If
any such petition or application is filed or any such proceedings
are
commenced against the Guarantor and the Guarantor by any act indicates
its
approval thereof, consent thereto, or acquiescence therein, or any
order
is entered appointing any such trustee or receiver, or declaring
the
Guarantor bankrupt or insolvent, or approving the petition in any
such
proceedings; or
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15.5
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If
the Guarantor shall dissolve, terminate or otherwise fail to maintain
its
legal existence, as the case may
be.
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If
an
Event of Default shall occur, then or at any time thereafter, while such Event
of Default shall continue, the Lender may declare all Guaranteed Obligations,
together with all obligations of the undersigned hereunder, to be immediately
due and payable.
| 16. |
General.
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16.1
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Costs
and Expenses.
Guarantor shall pay all reasonable attorneys’ fees and disbursements,
costs and expenses incurred by Lender in the enforcement of this
Guaranty.
“Attorneys’ fees” and “counsel fees” and the like as used herein shall
include reasonable fees for the attorneys’ services whether outside or
within judicial proceedings, including also appellate and bankruptcy
court
proceedings.
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| 16.2 |
Governing
Law.
This Guaranty shall be enforced and construed in accordance with
the laws
of the Commonwealth of Massachusetts, and Guarantor waives the right
to be
sued elsewhere. In the event suit is brought by Lender, Guarantor
agrees
that service of process may be made, and personal jurisdiction obtained,
by service of a copy of the summons, complaint and other pleadings
required to commence such litigation upon Guarantor at the address
designated in Paragraph 1 above.
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16.3
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Jury
Trial Waiver.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A JURY IN ANY PROCEEDINGS
HEREAFTER INSTITUTED BY OR AGAINST GUARANTOR IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING,
GOVERNING OR SECURING THE NOTES OR GUARANTY, INCLUDING ALL LOAN
DOCUMENTS.
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16.4
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Successors
and Assigns.
This Guaranty shall be binding upon Guarantor and the successors,
assigns
and legal representatives of Guarantor, and shall inure to the benefit
of
Lender and the successors, assigns and legal representatives of Lender.
Guarantor may not assign its rights or delegate its duties under
this
Guaranty. The transfer or assignment by Lender of the Notes shall
operate
as a transfer or assignment to the transferee or assignee of this
Guaranty
and all rights and privileges
hereunder.
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16.5
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Cumulative
Remedies.
All of Lender’s rights, remedies and recourse under the Loan Documents or
this Guaranty are separate and cumulative and may be pursued separately,
successively or concurrently, are non-exclusive and the exercise
of any
one or more of them shall in no way limit or prejudice any other legal or
equitable right, remedy or recourse to which Lender may be
entitled.
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16.6
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Gender
and Number.
Whenever the context so requires the masculine gender shall include
the
feminine and/or neuter and the singular number shall include the
plural
and conversely in each case.
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16.7
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Modifications.
No provision hereof shall be modified or limited except by a written
agreement expressly referring to this Guaranty and to the provision
so
modified or limited and signed by Guarantor and
Lender.
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16.8
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Severability.
In case any one or more of the provisions contained in this Guaranty
shall
for any reason be held to be invalid, illegal or unenforceable in
any
respect, such invalidity, illegality or unenforceability shall not
affect
any other provision hereof, and this Guaranty shall be construed
as if
such invalid, illegal or unenforceable provision had never been contained
herein.
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16.9
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Notices.
Any notice, request, demand or other communication required or permitted
hereunder shall be given in writing by delivering the same in person
to
the intended addressee, by overnight courier service with guaranteed
next
day delivery or by certified United States Mail, postage prepaid
or
telegram sent to the intended addressee at the applicable address
set
forth on Page 1 hereof or to such different address as either Guarantor
or
Lender shall have designated by written notice to the other sent
in
accordance herewith.
Copies of all notices to Lender shall also be sent to Xxxxx X. Xxxxxxxx,
Esquire, Xxxxxxxx Xxxxxxx Xxxxxxxx P.C., 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000.
Such notices shall be deemed given when received or, if earlier,
in the
case of delivery by courier service with guaranteed next day delivery,
the
next day or the day designated for delivery, or in the case of delivery
by
certified United States Mail, two days after deposit
therein.
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16.10
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Headings.
The headings of sections herein are inserted only for convenience
and
shall in no way define, describe or limit the scope or intent of
any
provisions of this Guaranty.
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[Signature
on following page]
| Guaranty by ABR Advisors, Inc. |
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IN
WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of the
date
first above written.
| GUARANTOR: | |||
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[
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By: |
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| Name: |
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Title: | ||
| Guaranty by ABR Advisors, Inc. |
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