Exhibit 10.7
AMENDED AND RESTATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT ("GUARANTY"), dated July
2, 2003, is made and entered into upon the terms hereinafter set forth, by
GUIDELINE RESEARCH CORP., a New York corporation, TABLINE DATA SERVICES, INC., a
New York corporation ("TDS"), GUIDELINE/CHICAGO, INC., an Illinois corporation
("GCI"), ADVANCED ANALYTICS, INC., a New York corporation ("AAI"), GUIDELINE
CONSULTING CORP., a New York corporation ("GCC"; TDS, GCI, AAI and GCC are
sometimes hereinafter collectively referred to as the "ORIGINAL GUARANTORS"),
and TTECH ACQUISITION CORP., a Delaware corporation ("TTC"; TTC and the Original
Guarantors are sometimes hereinafter collectively referred to as the
"GUARANTOR"), in favor of PETRA MEZZANINE FUND, L.P., a Delaware limited
partnership ("CREDITOR").
RECITALS:
A. Pursuant to that certain Loan Agreement dated April 1, 2003, by and
between FIND/SVP, INC., a New York corporation ("DEBTOR"), and Creditor (the
"ORIGINAL LOAN AGREEMENT"), Creditor has made a loan to Debtor in the original
principal amount not exceeding $3,000,000 (the "ORIGINAL LOAN"), as evidenced by
that certain Promissory Note dated April 1, 2003, in the original principal
amount of the Loan, made and executed by Debtor and payable to the order of
Creditor (the "FIRST NOTE").
B. Original Guarantors have guaranteed, among other things, the
repayment of the Loan pursuant to that certain Guaranty Agreement dated April 1,
2003, executed by Original Guarantors in favor of Creditor (the "EXISTING
GUARANTY").
C. At Debtor's request, Creditor has agreed to make an additional loan
to Debtor in the original principal amount not exceeding $500,000 (the
"ADDITIONAL LOAN"; the Original Loan and the Additional Loan are individually
and collectively referred to herein as the "LOAN"), pursuant to that certain
Amended and Restated Loan Agreement of even date herewith, by and between Debtor
and Secured Party (the "LOAN AGREEMENT" terms not otherwise defined herein shall
have the same terms as in the Loan Agreement), and as evidenced by that certain
Promissory Note of even date herewith, in the original principal amount of
$500,000, made and executed by Debtor and payable to the order of Creditor (the
"SECOND NOTE"; the First Note and the Second Note are individually and
collectively referred to herein as the "NOTE").
D. It is a condition of Creditor's agreement to make the Additional
Loan that TTC join in the Guaranty and that Guarantor execute and deliver this
Guaranty to Creditor.
E. Guarantor desires to execute and deliver this Guaranty to Creditor
in order to induce Creditor to make the Additional Loan to Debtor, which will be
to the direct interest, advantage and benefit of Guarantor.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and to induce Creditor to consent to the aforesaid
increase of the Loan, Guarantor hereby agrees as follows:
1. Guarantor hereby guarantees to Creditor the full and prompt payment
and performance of (a) the indebtedness evidenced by the Note, principal and any
and all interest accrued or to accrue thereon, (b) the obligations of Debtor to
Creditor pursuant to the Note, the Loan Agreement and any and all other
instruments, documents and agreements now or hereafter further evidencing,
securing or otherwise related to the indebtedness evidenced by the Note (the
"LOAN DOCUMENTS"), and (c) any and all other indebtedness and obligations of
Debtor to Creditor, direct or contingent whether now existing or hereafter
arising and however evidenced (the aforesaid indebtedness and other obligations
are sometimes herein collectively referred to as the "GUARANTEED Obligations");
provided, however, that the liability of each Guarantor individually, with
respect to the Guarantor's obligations shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law. Guarantor hereby agrees
that if the Guaranteed Obligations are not timely paid or performed, as the case
may be, in accordance with the terms thereof, Guarantor immediately will pay or
perform such Guaranteed Obligations. If for any reason any payment or obligation
in respect of the Guaranteed Obligations shall be determined at any time to be a
voidable preference or otherwise shall be set aside or required to be returned
or repaid, this Guaranty nevertheless shall remain in full force and effect and
shall be fully enforceable against Guarantor for the payment or obligation set
aside, returned or repaid, as well as any other Guaranteed Obligations still
outstanding, notwithstanding the fact that this Guaranty may have been canceled,
released and returned to Guarantor by Creditor.
2. In addition to the obligations of Guarantor to Creditor pursuant to
PARAGRAPH 1 hereof, Guarantor further agrees to pay any and all expenses
(including attorney's fees) reasonably incurred by Creditor in endeavoring to
collect or enforce the obligations of Guarantor under this Guaranty.
3. Guarantor hereby waives notice of any breach or default by Debtor,
and hereby further waives presentment, demand, notice of dishonor and protest
with respect to any instrument now or hereafter evidencing any of the Guaranteed
Obligations.
4. Any act of Creditor consisting of a waiver of any of the terms,
covenants or conditions of the Guaranteed Obligations, or the giving of any
consent to any matter or thing relating to the Guaranteed Obligations, or the
granting of any indulgences or extensions of time to Debtor, may be done without
notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released or
impaired by (a) Creditor's receipt, application or release of any security at
any time given for the payment,
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performance or observance of any of the Guaranteed Obligations, or (b) the
release of, or the modification of the obligations of, any other indorser,
surety or guarantor of any of the Guaranteed Obligations. Similarly, the
obligations of Guarantor hereunder shall not be released or impaired by any
amendment to or modification of any of the terms of the Guaranteed Obligations
made by Creditor and Debtor, but in the case of any such amendment or
modification, the liability of Guarantor shall be deemed modified in accordance
with the terms of any such amendment or modification.
6. The liability of Guarantor hereunder shall in no way be affected by
(a) the release or discharge of Debtor in any creditors', receivership,
bankruptcy or other proceedings, (b) the impairment, limitation or modification
of the liability of Debtor or the estate of Debtor in bankruptcy, or of any
remedy for the enforcement of any of the Guaranteed Obligations resulting from
the operation of any present or future provision of the Federal bankruptcy law
or any other statute or the decision of any court, (c) the rejection or
disaffirmance of any instrument, document or agreement evidencing any of the
Guaranteed Obligations in any such proceedings, (d) the assignment or transfer
of any of the Guaranteed Obligations by Creditor, (e) the death or dissolution
or any disability or other defense of Debtor, or (f) the cessation from any
cause whatsoever of the liability of Debtor with respect to the Guaranteed
Obligations.
7. Until all of the Guaranteed Obligations have been fully paid and
performed, as the case may be, any liability or indebtedness of Debtor now or
hereafter held by Guarantor is and shall be subject and subordinate to the
obligations of Debtor to Creditor under the Guaranteed Obligations.
8. Guarantor hereby waives any claim, right or remedy that Guarantor
may now have or hereafter acquire against Debtor that arises hereunder or from
performance by Guarantor hereunder, including any claim, right or remedy of
subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of Creditor against Debtor or any
collateral now or hereafter securing the Guaranteed Obligations, regardless of
whether such claim, right or remedy arises under contract, by statute, under
common law, in equity or otherwise.
9. This is a guaranty of payment and performance and not of collection.
The liability of Guarantor hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Debtor or any
other person, nor against any collateral available to Creditor. Guarantor hereby
waives any right to require that an action be brought against Debtor or any
other person or to require that resort be had to any collateral in favor of
Creditor prior to discharging its obligations hereunder. Guarantor further
waives any right of Guarantor to require that an action be brought against
Debtor under the provisions of Title 47, Chapter 12, Tennessee Code Annotated,
as the same may be amended from time to time.
10. Guarantor hereby consents and agrees that all payments and credits
received from Debtor or Guarantor or realized from any collateral may be applied
by Creditor to the Guaranteed Obligations in such priority as Creditor in its
sole judgment shall see fit.
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11. In the event that Guarantor consists of more than one person or
entity, the obligations of Guarantor hereunder shall be joint and several, and
all references herein to "Guarantor" shall refer to each of said persons or
entities jointly and severally. This Guaranty is assignable by Creditor, and any
assignment of the Guaranteed Obligations or any portion thereof by Creditor
shall operate to vest in the assignee the rights and powers of Creditor
hereunder to the extent of such assignment. This Guaranty shall be binding upon
Guarantor and Guarantor's heirs, representatives, successors,
successors-in-title and assigns, and shall inure to the benefit of Creditor, its
heirs, representatives, successors, successors-in-title and assigns.
12. This Guaranty shall be construed in accordance with and governed by
the laws of the State of Tennessee applicable to contracts to be performed
within said state.
13. No amendment or modification hereof shall be effective unless
evidenced by a writing signed by Guarantor and Creditor. When used herein, the
singular shall include the plural, and vice versa, and the use of any gender
shall include all other genders, as appropriate.
14. Guarantor hereby waives notice of acceptance of this Guaranty by
Creditor.
15. Any reference herein to any instrument, document or agreement, by
whatever terminology used, shall be deemed to include any and all amendments,
modifications, supplements, extensions, renewals, substitutions or replacements
thereof as the context may require. When used herein, (a) the singular shall
include the plural, and vice versa, and the use of the masculine, feminine or
neuter gender shall include all other genders, as appropriate, (b) "include",
"includes" and "including" shall be deemed to be followed by "without
limitation" regardless of whether such words or words of like import in fact
follow same, and (c) unless the context clearly indicates otherwise, the
disjunctive "or" shall include the conjunctive "and".
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty, or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
GUARANTOR:
GUIDELINE RESEARCH CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
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TABLINE DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
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GUIDELINE/CHICAGO, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
ADVANCED ANALYTICS, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
GUIDELINE CONSULTING CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
TTECH ACQUISITION CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Treasurer
---------------
ACCEPTED this 2nd day of July, 2003.
PETRA MEZZANINE FUND, L.P.
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx, III
------------------------------
Xxxxxx X. X'Xxxxx, III
Managing Member
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