GUARANTY AGREEMENT (Morry Rubin)
Exhibit
10.4
(Xxxxx
Xxxxx)
FOR TEN
DOLLARS ($10.00) in hand paid and in order to induce TEXTRON FINANCIAL CORPORATION,
a Delaware corporation in its capacity as agent (together with is successors in
such capacity, "Agent") for the Lenders (as hereinafter defined), and the
Lenders to make loans or extend credit from time to time, in accordance with the
terms of the Loan Agreement (as hereinafter defined), to ANCHOR FUNDING SERVICES, LLC,
a North Carolina limited liability company ("Debtor"), and for other good and
valuable consideration, the undersigned ("Guarantor") hereby unconditionally and
absolutely guarantees to Agent and Lenders the due and punctual payment,
performance and discharge (whether upon stated maturity, demand, acceleration or
otherwise in accordance with the terms thereof) of all such loans and extensions
of credit and all other debts, liabilities and obligations of Debtor to or held
by Agent or any Lender (including any portion thereof nominally held by Agent or
any Lender on behalf of others who have participations or interests therein
granted or created by Agent or such Lender) under the Loan and Security
Agreement dated November 21, 2008, among Debtor, the other financial
institutions party thereto (the "Lenders") and Agent in its capacity as agent
for the Lenders (as at any time amended, restated, supplemented or otherwise
modified, the "Loan Agreement") and related loan documents, whether direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
liquidated or unliquidated, primary or secondary, joint or several, now existing
or hereafter arising, whether created directly to or acquired by assignment or
otherwise by Agent or any Lender, and whether Debtor may be liable individually
or jointly with others, and regardless of whether recovery upon any of such
loans or extensions of credit or other debts, liabilities and obligations
becomes barred by any statute of limitations, is void or voidable under any law
relating to fraudulent obligations or otherwise, or is or becomes invalid or
unenforceable for any other reason (all such debts, liabilities and obligations
being hereinafter referred to collectively as the
"Indebtedness"). Without limiting the generality of the foregoing,
the term "Indebtedness" as used herein shall include all debts, liabilities and
obligations incurred by Debtor to Agent and Lenders under the Loan Agreement and
related loan documents, including reasonable attorneys' fees, in any bankruptcy
case of Debtor and any interest, fees or other charges accrued in any such
bankruptcy whether or not recoverable from Debtor or Debtor's estate under 11
U.S.C. § 506.
Except
as otherwise provided herein, in no event shall Guarantor's liability under this
Guaranty exceed the Maximum Guaranteed Amount. For purposes hereof,
the term "Maximum Guaranteed Amount" shall mean an amount equal to the sum of
(i) the Base Guaranteed Amount, and (ii) all costs and expenses, including
reasonable attorneys' fees, incurred by Agent in enforcing the terms of this
Guaranty for the benefit of Lenders in collecting the Base Guaranteed Amount
pursuant to this Guaranty. For purposes hereof, the term "Base
Guaranteed Amount" shall mean an amount equal to $250,000.
Notwithstanding
the foregoing, Guarantor's guaranty of the Indebtedness shall be unlimited and
for the full amount of the Indebtedness in the event that Agent seeks
enforcement of this Guaranty by reason of the occurrence of any Event of Default
arising from Debtor's or Guarantor's fraud, deceit, intentional
misrepresentation, material omission or other wrongful conduct in connection
with (i) any financial statements, Borrowing Base Certificates, Factoring
Documentation, collateral reports or other reports, statements or certificates
Borrower is required or elects to deliver to Agent under the Loan Agreement, and
(ii) the remittance of proceeds of collateral, the collection of payments from
Account Debtors and other monies or collections received by Borrower in respect
of the Collateral.
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All
capitalized terms used in this Guaranty, unless otherwise defined herein, shall
have the meanings ascribed to such terms in the Loan Agreement.
GUARANTOR
HEREBY WAIVES: notice of Agent's acceptance hereof; notice of the extension of
credit from time to time given by Agent and Lenders to Debtor and the creation,
existence or acquisition of any Indebtedness; notice of the amount of
Indebtedness of Debtor to Agent and Lenders from time to time, subject, however,
to Guarantor's right to make inquiry of Agent to ascertain the amount of
Indebtedness at any reasonable time; notice of any adverse change in Debtor's
financial condition or of any other fact which might increase Guarantor's risk;
notice of presentment for payment, demand, protest and notice thereof as to any
instrument; notice of default or acceleration and all other notices and demands
to which Guarantor might otherwise be entitled; any right Guarantor may have, by
statute or otherwise, to require Agent or any Lender to institute suit against
Debtor after notice or demand from Guarantor or to seek recourse first against
Debtor or others, or to realize upon any security for the Indebtedness, as a
condition to enforcing Guarantor's liability and obligations hereunder; any
defense that Debtor may at any time assert based upon the statute of
limitations, the statute of frauds, failure of consideration, fraud, bankruptcy,
lack of legal capacity, usury, or accord and satisfaction; any defense that
other indemnity, guaranty or security was to be obtained; any defense or claim
that any Person purporting to bind Debtor to the payment of Indebtedness did not
have actual or apparent authority to do so; and any right to contest the
commercial reasonableness of the disposition of any or all collateral (to the
extent waivable under applicable law). Guarantor further waives any
right Guarantor may have, by statute or otherwise, to appraisement, valuation,
stay of execution, or notice of election to declare due the amount of any
indebtedness of Debtor with regard to Agent's or any Lender's enforcement of any
security interest, lien, mortgage or other interest Agent or any Lender may hold
in any real or personal property of Debtor.
If an
Event of Default under (and as defined in) the Loan Agreement (other than an
Event of Default arising by reason of Guarantor's death) shall occur and be
continuing, or if a petition for an order for relief with respect to Debtor
should be filed by or against Debtor or Guarantor under any chapter of the
Bankruptcy Code, or if a receiver, trustee or conservator should be appointed
for Debtor or Guarantor or any of Debtor's or Guarantor's property, or if
Guarantor should attempt to revoke this Guaranty or dispute Guarantor's
liability hereunder, then, in any such event and whether or not any of the
Indebtedness is then due and payable or the maturity thereof has been
accelerated or demand for payment thereof from Debtor has been made, upon notice
to Guarantor Agent may make the Indebtedness immediately due and payable
hereunder as to Guarantor, Agent shall be entitled to enforce the obligations of
Guarantor hereunder and Guarantor shall forthwith pay to Agent, for the benefit
of Lenders, the Maximum Guaranteed Amount or additional amounts as contemplated
by the terms of this Guaranty, if applicable, together plus such other amounts
as may be payable hereunder; provided that the
obligations of Guarantor hereunder shall be automatically due and payable
without notice if an order for relief shall be filed with respect to Debtor
under the Bankruptcy Code. Guarantor agrees to pay all expenses
incurred by Agent in connection with enforcement of Agent's rights under the
Guaranty, including court costs, collection charges and reasonable attorneys'
fees.
2
Guarantor
consents and agrees that, without notice to or by Guarantor and without
affecting or impairing the liability or obligations of Guarantor hereunder,
Agent may: compromise or settle, extend the period of duration or the
time for the payment, discharge or performance of any of the Indebtedness or
increase the amount of the Indebtedness; refuse to enforce, or release any
Persons liable for the payment of any of the Indebtedness; increase, decrease or
otherwise alter the rate of interest payable with respect to the principal
amount of any of the Indebtedness or grant other indulgences to Debtor in
respect thereof; amend or modify in any manner, or terminate or release, any
documents or agreements evidencing, securing or otherwise relating to the
Indebtedness (other than this Guaranty); release, surrender, exchange, modify or
impair any and all collateral, deposits or other property at any time securing
(directly or indirectly) any of the Indebtedness or on which Agent or any Lender
or any agent for Agent or such Lender at any time may have a lien; extend the
time of payment of any collateral consisting of accounts, notes, chattel paper
or other rights to the payment of money; refuse to enforce its rights or make
any compromise or settlement or agreement therefor, in respect of any and all of
such collateral, deposits and property, or with any party liable for the
Indebtedness, or with any other Person, whatsoever; or release or substitute any
one or more of the endorsers or guarantors of the Indebtedness, whether parties
to this instrument or not.
Guarantor
consents and agrees that Agent shall be under no obligation to xxxxxxxx any
assets in favor of Guarantor or against or in payment of any or all of the
Indebtedness. Guarantor further agrees that, if and to the extent
Agent or any Lender receives any payment on account of any of the Indebtedness
(whether from Debtor, Guarantor or a third party obligor or from the sale or
other disposition of any collateral) and such payment or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy act, state or federal law, common law or equitable cause, then the
part of the Indebtedness intended to be satisfied shall be revived and continued
in full force and effect as if said payment had not been made. The
foregoing provisions of this paragraph shall survive the termination or
revocation of this Guaranty.
Guarantor
shall at such reasonable times as Agent requests furnish Guarantor's current
financial statements to Agent.
This
Guaranty is a primary, immediate and original obligation of Guarantor and is an
absolute, unconditional and continuing guaranty of payment of the Indebtedness
and not of its collectibility only, is not contingent upon the exercise or
enforcement by Agent or any Lender of any remedies Agent or any Lender may have
against Debtor or others, or the enforcement of any lien or realization upon any
security Agent or any Lender may at any time possess, and shall remain in full
force and effect without regard to future changes in conditions, including
change of law or any invalidity or irregularity with respect to the issuance of
any obligations of Debtor to Agent or any Lender or with respect to the
execution and delivery of any agreement among Debtor, Agent and
Lenders. This Guaranty shall be in addition to any other present or
future guaranty, agreement regarding the validity of collateral or other
security for any of the Indebtedness, shall not be prejudiced or unenforceable
by the invalidity of any such other guaranty, agreement or security, and amounts
paid in respect of any such other guaranty, agreement or security shall not be
credited or offset against sums owing under this Guaranty. This
Guaranty is not conditioned upon or subject to the execution by any other Person
of this Guaranty or any other guaranty or suretyship agreement. No payment of
any of the Indebtedness by Debtor or any other Person, or from the proceeds of
any property securing the payment of any Indebtedness, shall reduce or otherwise
affect Guarantor's liability hereunder for the payment of any remaining
Indebtedness.
3
Agent
shall have the right to seek recourse against Guarantor to the full extent
provided for herein and in any other document or instrument evidencing
obligations of Guarantor to Agent and Lenders, and against Debtor to the full
extent provided for in the Loan Agreement. No election to proceed in
one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Agent's right to proceed in any other form of
action or proceeding or against other parties unless Agent has expressly waived
such right in writing.
Guarantor
is fully aware of the financial condition of Debtor. Guarantor
delivers this Guaranty based solely upon Guarantor's own independent
investigation and in no part upon any representation or statement of Agent or
any Lender with respect thereto. Guarantor is in a position to and
hereby assumes full responsibility for obtaining any additional information
concerning, Debtor's financial condition as Guarantor may deem material to
Guarantor's obligations hereunder and Guarantor is not relying upon, nor
expecting Agent or any Lender to furnish it or any information in Agent's or any
Lender's possession concerning Debtor's financial
condition. Guarantor hereby knowingly accepts the full range of risks
encompassed within a contract of "Guaranty," which risks include, without
limitation, the possibility that Debtor will contract additional indebtedness
for which Guarantor may be liable hereunder after Debtor's financial condition
or ability to pay its lawful debts when they fall due has
deteriorated.
If for
any reason Debtor has no legal existence or is under no legal obligation to
discharge any of the Indebtedness, or if any of the Indebtedness have become
unrecoverable from Debtor by reason of Debtor's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on Guarantor to the same extent as if
Guarantor had at all times been the principal obligor on all such
Indebtedness. In the event that acceleration of the time for payment
of any of the Indebtedness is stayed upon the insolvency, bankruptcy or
reorganization of debt or for any other reason, all such amounts otherwise
subject to acceleration under the terms of any instrument or agreement
evidencing or securing the payment of the Indebtedness or otherwise executed in
connection therewith shall be immediately due and payable by
Guarantor.
Guarantor
agrees that this Guaranty shall be irrevocable and shall continue in full force
and effect until all of the Indebtedness has been fully paid and discharged and
all commitments of Agent and Lenders under the Loan Agreement have been
terminated. If Guarantor shall have any right under applicable law to
terminate or revoke this Guaranty, which right cannot be waived by Guarantor,
Guarantor agrees that such termination or revocation shall not be effective
until a written notice of such termination or revocation, specifically referring
to this Guaranty and signed by Guarantor, is actually received by Agent; but any
such termination or revocation shall not affect the right and power of Lender to
enforce rights arising, incurred or contracted for prior to Agent's receipt of
such written notice of termination or revocation. If Agent or Lenders
grant loans or other extensions of credit to or for the benefit of Debtor or
take other action after the termination or revocation by Guarantor but prior to
Agent's receipt of such written notice of termination or revocation, then the
rights of Agent under the Guaranty with respect to such loans or other
extensions of credit shall be the same as if such termination or revocation had
not occurred.
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Guarantor
agrees that all the rights, benefits and privileges herein and hereby conferred
upon Agent shall vest in and be enforceable by Agent and its successors and
assigns.
To the
extent any performance of this Guaranty would violate any applicable usury
statute or other applicable law, the obligation to be fulfilled shall be reduced
to the limit legally permitted, so that this Guaranty shall not require any
performance in excess of the limit legally permitted, but such obligations shall
be fulfilled to the limit of the legal validity. The provisions of
the paragraph shall control every other provision of this Guaranty.
This
Guaranty, all acts and transactions hereunder and the rights and obligations of
the parties hereto shall be governed, construed and interpreted according to the
internal laws of the State of Rhode Island. As part of the
consideration for Agent's and Lenders' granting credit to Debtor, Guarantor
hereby agrees that all actions, suits or proceedings arising directly or
indirectly hereunder may, at the option of Agent, be litigated in any court
having situs within the State of Rhode Island, and Guarantor hereby expressly
consents to the jurisdiction of any state or federal court located within said
state, and consents that any service of process in such action or proceedings
may be made by personal service upon Guarantor wherever Guarantor may be then
located, or by certified or registered mail directed to Guarantor at Guarantor's
last known address.
This
Guaranty expresses the entire understanding of the parties hereto with respect
to the subject matter hereof and may not be changed orally, and no obligation of
Guarantor can be released or waived by Agent or any officer or agent of Agent,
except by a writing signed by a duly authorized officer of Agent. In
the event Agent receives a guaranty at least as favorable to Agent and Lenders
as this Guaranty from another Person acceptable to Agent in its sole discretion,
Agent shall terminate this Guaranty.
Until all
of the Indebtedness has been paid in full and the Loan Agreement and all
commitments thereunder have been terminated, Guarantor shall have no claim,
right or remedy (whether or not arising in equity, by contract or applicable
law) against Debtor or any other Person by reason of Guarantor's payment or
other performance hereunder. Without limiting the generality of the
foregoing, Guarantor hereby subordinates to the full and final payment of the
Indebtedness any and all legal or equitable rights or claims that Guarantor may
have to reimbursement, subrogation, indemnity and exoneration and agrees that
until all of the Indebtedness has been paid in full and the Loan Agreement has
been terminated, Guarantor shall have no recourse to any assets or property of
Debtor (including any assets securing any of the Indebtedness) and no right of
recourse against or contribution from any other Person in any way directly or
contingently liable for any of the Indebtedness, whether any of such rights
arise under contract, in equity or under applicable law.
As used
herein, all references to the term "Guarantor" shall mean Guarantor and
Guarantor's personal representatives and assigns (including any receiver,
trustee or custodian for Guarantor or any of his assets or Guarantor in his
capacity as debtor or debtor-in-possession under the United States Bankruptcy
Code); all references to the term "Agent" shall mean Agent and its successors
and assigns; and all references to the term "Debtor" shall mean Debtor and its
successors and assigns (including any receiver, trustee or custodian for Debtor
or any of his assets or Debtor in his capacity as debtor or debtor-in-possession
under the United States Bankruptcy Code); all references to the term "Person"
wherever used herein shall mean any individual, sole proprietorship,
partnership, corporation, business trust, limited liability company,
unincorporated association, joint stock corporation, trust, joint venture or
other form of business entity or any government or any agency or instrumentality
or political subdivision thereof; all references to the plural shall also mean
the singular, and all references to the singular shall also mean the plural; and
all references to "include" or "including" shall mean "including, without
limitation."
This
Guaranty is intended to take effect as a sealed instrument under the laws of the
State of Rhode Island.
To
the fullest extent permitted by applicable law, Guarantor and Agent each hereby
waives the right to a jury trial in any action, suit, proceeding, or
counterclaim arising out of or related to this guaranty, and Guarantor further
waives any rights arising under applicable statutes or otherwise to require
Agent to institute suit against Debtor or any other Person liable for any of the
Indebtedness or to exhaust Agent's rights and remedies against Debtor or any
other Person liable for any of the Indebtedness, Guarantor being bound to the
payment of any and all Indebtedness to the extent provided herein.
[Remainder
of page intentionally left blank;
signatures
appear on following page.]
IN
WITNESS WHEREOF, Guarantor has executed this Guaranty, this 21st day of
November, 2008.
| (SEAL) | |||
| Witness | Xxxxx Xxxxx ("Guarantor") | ||
| Address: | |||
| Guarantor's Address: | |||
| c/o Anchor Funding Services, LLC | |||
| 00000 Xxxxxxx Xxxx, Xxxxx 000 | |||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
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