GUARANTY AGREEMENT
Exhibit
2.4
This
GUARANTY AGREEMENT (the “Guaranty”), dated as of March 31, 2006, is made by
Security National Master Holding Company, LLC ( “Guarantor”) in favor and for
the benefit of Matrix Bancorp Trading, Inc., a Colorado corporation (“MBTI”)
(“Lender”).
Recitals
A. Pursuant
to the Asset Purchase Agreement dated March 31, 2006 between SN Capital Markets,
LLC, a Delaware limited liability company (“Borrower”), Security National
Holding Company, LLC, an Alaska limited liability company, Lender and Guarantor
(as amended, modified, supplemented or restated (the “Purchase Agreement”),
Lender has sold certain of their assets to Borrower in partial consideration
for
that certain Promissory Note dated March 31, 2006, made by Borrower in favor
of
Lender (the “Note”). Security National Holding Company, LLC is the record owner
of a fifty-one percent (51%) membership interest of Borrower (the “Interests”).
Security National Master Holding Company, LLC is the parent company of, and
is
the record owner of a 100% membership interest in Security National Holding
Company, LLC.
B. It
is a
condition precedent to the Lenders’ obligation to make and maintain the Note
that the Guarantor shall have executed and delivered this Guaranty and that
this
Guaranty shall be in full force and effect.
C. This
Guaranty is given by the Guarantor to and in favor of the Lender to guarantee
the due and punctual performance of all the obligations of the Borrower to
the
Lender under the Purchase Agreement and all other documents contemplated
thereby
(collectively, the “Purchase Documents”) on the terms and conditions set forth
herein.
Agreement
NOW,
THEREFORE, in consideration of the foregoing premises and for other good
and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty.
a. The
Guarantor hereby:
(i) guarantees,
absolutely, unconditionally and irrevocably, the prompt and complete payment
and
performance when due (whether at the stated maturity, on acceleration, on
demand
or otherwise) and at all times thereafter of all present and future obligations,
conditions, covenants, payments, liabilities and indebtedness of all kinds
of
the Borrower whether for principal, interest, fees, costs, expenses,
indemnification or otherwise, under or related to the Purchase Agreement
and the
other Purchase Documents, including but not limited to the Note, as any of
the
foregoing may be amended, modified, supplemented, extended or restated in
accordance with its terms (the “Obligations”), and
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(ii) agrees
to
pay any and all costs and expenses (including reasonable attorneys’ fees and
disbursements) which may be paid or incurred by Lender in enforcing any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against Guarantor under this Guaranty
(collectively, the Obligations in Section
1(a)(i)
and in
this Section
1(a)(ii)
are
referred to herein as the “Guaranteed Obligations”).
b. The
Guarantor agrees that this Guaranty constitutes a guarantee of payment and
not
of collection, and Lender shall not be obligated to initiate, pursue or exhaust
any form of recourse or obtain any judgment against the Borrower or others
or to
realize upon or exhaust any collateral security held by or available to Lender
before being entitled to payment from the Guarantor. The liability of the
Guarantor shall be irrevocable, absolute and unconditional irrespective of
and
shall not be limited, diminished or affected by:
(i) any
lack
of validity, legality or enforceability of the Purchase Agreement, the other
Purchase Documents or any agreement or instrument relating thereto,
(ii) any
failure by Lender to file or enforce any claim against the estate (in
administration, bankruptcy or otherwise) of the Borrower, any guarantor or
others,
(iii) the
fact
that recovery from the Borrower (or any other guarantor(s) or any other person
is barred by any statute of limitations or for any other reason,
(iv) any
amendment, modification, extension or change of any kind or nature to the
Purchase Agreement or any other Purchase Documents, with or without notice
thereof to Guarantor, including, without limitation, any change in the time,
manner or place of payment of the Guaranteed Obligations or any increase,
reduction, limitation, impairment or termination of any of the Guaranteed
Obligations,
(v) any
adjustment, indulgence, forbearance or compromise granted by Lender to the
Borrower or any guarantor, or
(vi) any
other
circumstance, event or occurrence which might otherwise constitute a legal
or
equitable discharge of a guarantor or a defense to a guaranty.
The
Guarantor hereby waives any and all defenses based on any of the foregoing
and
all other defenses based on suretyship. The Guarantor hereby renounces all
benefits of marshaling, discussion and division and waives diligence,
presentment, promptness, protest, notice of dishonor or protest or default,
demand for payment upon the Borrower or any guarantor, notice of acceptance
of
this Guaranty, notice of any addition to or increase or decrease in the
Guaranteed Obligations and all other notices and demands
whatsoever.
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c. This
Guaranty is a continuing guarantee, and it will not be discharged until payment
in full of all of the Guaranteed Obligations and written cancellation of
this
Guaranty by Lender (“Termination”) and will remain in full force and effect
notwithstanding any interruption in the business relations between the Borrower
and Lender or any increase or decrease from time to time in the amount of
the
Guaranteed Obligations. No payment or payments made by any other person other
than the Borrower or the Guarantor in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability
or
obligations of any Guarantor hereunder until Termination.
d. This
Guaranty and the guarantee by the Guarantor of all of the Guaranteed Obligations
hereunder, shall not be reduced, prorated or otherwise affected by any guarantee
given by any other guarantor, any other suretyship of the Guaranteed Obligations
by other persons, now or hereafter existing, or the taking of any security
for
the Guaranteed Obligations.
e. The
Guarantor hereby waives any right to revoke or rescind this Guaranty, and
acknowledge that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
2. Lender’s
Rights.
The
Guarantor authorizes Lender, without notice or demand and without affecting
Guarantor’s liability hereunder, to take and hold security from any other person
for the payment of this Guaranty and/or any of the Guaranteed Obligations,
and
to exchange, enforce, waive and release any such security; to apply such
security and direct the order or manner of sale thereof, as Lender, in its
sole
discretion, may determine; to obtain or release a guaranty of the Guaranteed
Obligations from any one or more persons from time to time; and, at any time
or
times to enforce, waive, rearrange, modify, limit or release any of such
other
persons from their obligations under such guaranties or security arrangements.
Without limiting the generality of the foregoing, the Guarantor waives any
right
that they might otherwise have under Sections 00-00-000 and 00-00-000 of
the Colorado Revised Statutes (or under any corresponding future statute
or rule
of law in any jurisdiction).
3. Effectiveness;
Reinstatement; Payment Free of Taxes.
This
Guaranty shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Guaranteed
Obligations is rescinded or must otherwise be restored or returned by Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of
the Borrower or Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
the
Borrower or Guarantor or any substantial part of their respective property,
or
otherwise, all as though such payments had not been made. The Lender and
the
Borrower may modify, rearrange, extend for any period and/or renew from time
to
time the Guaranteed Obligations without notice to the Guarantor, and in such
event the obligations of the Guarantor with respect to the Guaranteed
Obligations shall not be released, discharged or reduced and the Guarantor
will
remain fully bound hereunder on such Guaranteed Obligations. This Guaranty
may
be enforced by Lender and any subsequent holder of the Guaranteed Obligations
and shall not be discharged by the assignment or negotiation of all or a
part of
the Guaranteed Obligations. The Guarantor agrees that all payments by the
Guarantor hereunder shall be free and clear of and without deduction for
any
present or future taxes, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority.
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4. Default.
If (i)
the Borrower has failed to pay or perform when due its Guaranteed Obligations
(whether at the stated maturity, on acceleration, on demand or otherwise)
and
the grace period applicable thereto, if any, has expired, (ii) an Event of
Default occurs under and as defined in the Note, (iii) an “Insolvency Event” (as
defined below) with respect to the Borrower or any guarantor, including
Guarantor, occurs, (iii) any guarantor, including Guarantor, fails to perform
or
comply with any of its covenants and agreements herein or (iv) any
representation or warranty made by any guarantor, including Guarantor hereunder,
shall prove to have been incorrect when made, then all of the Guaranteed
Obligations shall be immediately due and payable by the Guarantor regardless
of
whether the payment of the Guaranteed Obligations has been accelerated or
the
Borrower is in default with respect to the Guaranteed Obligations. An
“Insolvency Event” occurs if (i) the Borrower or any guarantor, including
Guarantor, shall commence any case, proceeding or other action (A) under
any
existing or future law of any jurisdiction, domestic or foreign, relating
to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have
an
order for relief entered with respect to it, or seeking to adjudicate it
as
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
wind-up, liquidation, dissolution, composition or other relief with respect
to
it or its debts, or (B) seeking appointment of a receiver, trustee, custodian
or
other similar official for it or for all or any substantial part of its assets,
(ii) there shall be commenced against the Borrower or any guarantor, including
Guarantor, any such case, proceeding or other action referred to in clause
(i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days or (iii) the Borrower or any guarantor, including
Guarantor, shall generally not pay its debts as such debts become due, or
shall
admit in writing its inability to pay its debts generally, or shall make
a
general assignment of the benefit of creditors.
5. Merger.
This
Guaranty shall not be affected by any change in the name of the Borrower
or
Guarantor, or by the acquisition of the Borrower’s or Guarantor’s business by
any person, firm or corporation, or by any change whatsoever in the objects,
capital structure or constitution of the Borrower or Guarantor, or by any
merger, amalgamation or consolidation of the Borrower or Guarantor with any
corporation or other person, by any dissolution or liquidation of the Borrower
or Guarantor, but shall, notwithstanding the happening of any such event,
continue to apply to all the Guaranteed Obligations whether theretofore or
thereafter incurred, and in this instrument the word “Borrower” and “Guarantor”
shall include every such person, firm, partner and corporation and all
successors and assigns thereof. Nothing in this Section
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shall be
construed as authorization or approval of any such transaction. The Guarantor
shall promptly notify Lenders of any change or event described in this
Section 5.
6. No
Waiver.
Lender
shall be obligated to exercise any right, power or privilege hereunder, and
no
failure to exercise and no delay in exercising, on the part of Lender, any
such
right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No notice
to or
demand on Guarantor shall be deemed to be a waiver of the right of Lender
to
take further action without notice or demand as provided herein. No waiver
shall
be applicable except in the specific instance and for the specific purpose
for
which given, nor in any event shall any amendment, modification or waiver
of any
provision of this Guaranty be effective unless in writing and signed on behalf
of Lender.
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7. Waiver
of Subrogation.
Guarantor hereby agrees to waive any claim or right to be subrogated to any
claims of Lender against the Borrower until the Guaranteed Obligations have
been
paid in full.
8. Subordination.
Guarantor acknowledges and agrees that any indebtedness, obligation or other
liability or security interest that Guarantor may have in the assets of Borrower
shall be subordinate and junior in right of payment to any indebtedness,
obligation or other liability or security interest of Lender, including as
a
result of the Purchase Agreement, in such collateral, regardless of priority
under applicable law.
9. Representations
and Warranties of Guarantor.
Guarantor represents and warrants (which representations and warranties will
survive the creation of the Guaranteed Obligations) that:
a. Benefit
to Guarantor.
Guarantor’s guaranty pursuant to this Guaranty reasonably may be expected to
benefit, directly or indirectly, Guarantor and that the waivers given by
Guarantor in this Guaranty are knowingly made in contemplation of such
benefits.
b. Familiarity
and Reliance.
Guarantor is familiar with, and has independently reviewed the books and
records
regarding the financial condition of the Borrower and is familiar with the
value
of the Borrower and any and all collateral intended to be created as security
for the Guaranteed Obligations. Notwithstanding the foregoing, Guarantor
is not
relying on such financial condition or any collateral as an inducement to
enter
into this Guaranty. Guarantor has reviewed the Purchase Agreement and the
other
Purchase Documents and acknowledges notice of the terms, conditions and
provisions of each such document.
c. No
Representation.
Lender
nor any other person has made any representation, warranty or statement to
Guarantor with regard to the Borrower or the Borrower’s financial condition in
order to induce Guarantor to execute this Guaranty.
d. Guarantor’s
Financial Condition.
As of
the date hereof and after giving effect to this Guaranty and the contingent
liability evidenced hereby, Guarantor is and will be solvent, and has assets
which, fairly valued, exceed its obligations, liabilities and
debts.
e. Authorization;
No Conflict.
The
execution, delivery and performance by Guarantor of this Guaranty is within
Guarantor’s authority, and does not and will not violate any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to Guarantor; or result
in a
breach of or constitute a default under or require the consent of any party
pursuant to any agreement, lease or instrument to which Guarantor is a party
or
by which it or its properties may be bound or affected. This Guaranty has
been
duly executed and delivered by Guarantor.
f. Binding
Obligation.
This
Guaranty is a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor, in accordance with its terms (except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws or equitable
principles affecting enforcement of creditors’ rights generally at the time in
effect).
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10. Notices.
All
notices required or permitted to be given under this Guaranty shall be in
conformance with Section 10.3 of the Purchase Agreement at the addresses
provided herein or therein.
11. Successors
and Assigns.
This
Guaranty shall extend to and inure to the benefit of Lender and any of their
successors and assigns, and every reference herein to a Guarantor is a reference
to, and shall be construed as including, Guarantor and its successors and
assigns, to and upon all of whom this Guaranty and agreement shall extend
and be
binding.
12. Further
Assurances.
Guarantor agrees to execute and deliver to Lender all such documents and
to take
all such other action as may be reasonably requested by Lender to more fully
vest in and assure Lender of all of the rights, powers, privileges and remedies
herein intended to be granted to or conferred upon Lender.
13. Governing
Law.
This
Guaranty shall be deemed to have been made under and shall be governed by,
and
construed in accordance with, the laws of the State of Colorado in all respects,
including matters of construction, validity and performance.
14. Arbitration.
Guarantor hereby agrees to submit all disputes, disagreements and claims
with
either Lender or otherwise involving this Guaranty to binding arbitration
as
described in Section 10.13 of the Purchase
Agreement. The terms of such section are incorporated herein by reference,
mutatis
mutandis,
and the
Guarantor agrees to such terms.
15. Entire
Agreement.
This
written Guaranty and the other Purchase Documents represent the final agreement
by the undersigned with respect to the matters set forth herein and may not
be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
by the undersigned. There are no unwritten oral agreements relating to this
Guaranty or the matters set forth herein.
16. Fair
Meaning; Representation by Counsel.
The
parties acknowledge the opportunity to consult and be represented by counsel
in
the negotiation, drafting and execution of this Guaranty and have consulted
counsel prior to signing this Guaranty or have waived their right to do so.
The
language in this Guaranty shall in all cases be construed as a whole according
to its fair meaning, and not strictly for or against either party.
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IN
WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
and delivered by its duly authorized officer as of the date first above
written.
|
GUARANTOR:
Security
National Master Holding Company,
LLC
|
||
| |
|
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| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | ||
| Title: Executive Vice President_________ | ||
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