and CENTURION FINANCIAL TRUST as lender and as agent and nominee for certain lenders pursuant to the Debenture as defined below (the, “Secured Party”)
Dated as of June BETWEEN:
9 , 2021
GUARANTEE AND INDEMNITY
Each of the parties listed on Schedule A hereto (collectively, the “Guarantors” and each a “Guarantor”)
and
CENTURION FINANCIAL TRUST as lender and as agent and nominee for certain lenders pursuant to the Debenture as defined below (the, “Secured Party”)
RECITALS:
Debenture dated June 9 , 2021 (as may be amended, supplemented, restated, replaced, or
otherwise modified from time to time, the “Debenture”).
The parties agree as follows:
| 1.01 | Definitions |
ARTICLE 1 INTERPRETATION
In this guarantee, in addition to the terms defined above, the following definitions apply:
“Agreed Currency” means the currency in which the Debtor must pay each component of the Obligations.
“Authorized Persons” means the Debtor, any Guarantor, or any of their respective directors, partners, employees, or agents acting or purporting to act on their behalf.
“Collateral” has the meaning assigned to it in the General Security Agreement dated
June 9 , 2021 granted by the Guarantors and the Debtor in favour of the Secured Party.
“Commitment Letter” means the letter agreement dated March 8, 2021 issued by the Secured Party to the Debtor.
“Demand” means a demand by the Secured Party, made by Notice, upon the Guarantors that they make payment under this guarantee.
“Documents” means all the Debtor’s books, accounts, invoices, letters, papers, security certificates, documents, and other records (including customer lists and records, subject, however, to privacy, confidentiality, and access rights of customers), in any form
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evidencing or relating to any part of the Collateral, together with all agreements, licences, and other rights and benefits relating to any of them.
“Law” means
“Notice” means any notice, request, direction, or other document that a party can or must make or give under this guarantee.
“Obligations” means all of the Debtor’s present and future liabilities, obligations, and indebtedness (including all principal, interest, fees, expenses and other amounts), whether direct or indirect, contingent or absolute, joint or several, matured or unmatured, in any currency, to the Secured Party arising under, in connection with, or relating to the Commitment Letter, Debenture or any other document executed in connection therewith (including all obligations of other amalgamating corporations and the amalgamated corporation described in paragraph (a) of section 8.07 (Debtor’s amalgamation)).
“Postponed Indebtedness” means all of the Debtor’s present and future liabilities, indebtedness, and obligations to any Guarantor (including interest), direct or indirect, contingent or absolute, joint or several, matured or unmatured, whether arising by agreement, by Xxx, in equity, or otherwise.
“Postponed Security” means security for the Postponed Indebtedness.
“Rate of Exchange” means the closing rate of exchange for Canadian interbank transactions published by the Bank of Canada for the relevant date.
“Taxes” means all taxes, duties, rates, levies, assessments, reassessments, withholdings, deductions, fees, dues, and other charges, together with all related penalties, interest, and fines, payable to any governmental authority, but does not include any franchise taxes or any taxes imposed on or measured by the Secured Party’s net income, receipts, or capital.
“Transaction Documents” means this guarantee and each other agreement, relating to the Debenture, from time to time in effect between the Debtor and the Secured Party and any Guarantor and the Secured Party (including all Documents relating to any of them).
Capitalized terms used in this guarantee and not otherwise defined have the meanings given to them in the Debenture.
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| (c) | “Knowledge.” Where any representation, warranty, or other statement in this guarantee, or in any other document entered into or delivered under this guarantee, is expressed by a party to be “to its knowledge,” or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means |
The headings used in this guarantee and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.
References in this guarantee to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this guarantee.
Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
In this guarantee, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. Eastern Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. Eastern Time on the next Business Day.
The following are the schedules to this guarantee: A-Guarantors
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ARTICLE 2 GUARANTEE AND INDEMNITY
The Guarantors irrevocably and unconditionally guarantees to the Secured Party, as a continuing obligation, the full and punctual payment and performance of the Obligations when due, whether at stated maturity, by acceleration, declaration, demand, or otherwise.
The Guarantors’ liability under this guarantee is unlimited.
This is a continuing guarantee for payment when due under a current, running, or revolving account, credit facility, or similar account or facility, and not of collection. This guarantee is irrevocable by the Guarantors, and the Guarantors expressly and unconditionally waives any right to terminate this guarantee.
If the Secured Party cannot recover the Obligations under section 2.01 (Guarantee) for any reason, then, in addition to the guarantee provided by the Guarantors in section 2.01 (Guarantee) and as a separate and distinct obligation, the Guarantors shall indemnify the Secured Party against all direct and indirect claims, losses, payments, and expenses that the Secured Party may suffer or incur in connection with the Debtor’s failure to satisfy the Obligations.
If the Secured Party cannot recover the Obligations under section 2.01 (Guarantee) or if the Secured Party is not fully indemnified under section 2.04(Indemnity), in either case for any reason, then the Secured Party may recover those Obligations from any Guarantor as primary obligor as a separate and distinct obligation. In that case, the Secured Party may
| (a) | treat all Obligations as due and payable, |
| (c) | apply any amounts so collected to the Obligations or place those amounts to the credit of a special account. |
The Guarantors shall make payment under this guarantee immediately upon Demand by the Secured Party. The Guarantors’ liability will bear interest from the date that the Secured Party makes that Demand to the date of payment at the rate set out in section 2.08 (Interest).
In the absence of manifest error, the Guarantors shall accept and will be bound by any account settled or stated in writing by or between the Secured Party and the Debtor as prima facie evidence of the amount or balance that the Debtor must pay the Secured Party.
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Each Guarantor's liability, whether as a guarantor, indemnitor, or primary obligor, bears interest from the date that the Secured Party makes Demand, both before and after Demand, default, or judgment and until actual payment in full, at an annual rate of interest fluctuating with and at all times equal to the highest rate applicable to the Obligations. For purposes of the Interest Act (Canada), the yearly rate of interest applicable to amounts owing under this guarantee will be calculated on the basis of a 365-day year. Whenever interest is to be calculated on the basis of any period of time that is less than a calendar year, the yearly rate of interest to which the rate determined by that calculation is equivalent is the rate so determined multiplied by the actual number of days in that calendar year and divided by that period of time.
| (c) | If any taxing authority directly assesses any Taxes against the Secured Party in connection with any payment that the Secured Party receives under this guarantee, then the Secured Party may pay those Taxes, in which case the Guarantors shall promptly pay those additional Taxes (including any penalties, interest, expenses, or any Taxes on that additional amount) as is necessary so that, after the payment of those Taxes, the net amount that the Secured Party receives is equal to the amount that the Secured Party would have received had that taxing authority not asserted those Taxes. |
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| (c) | If the amount of the Agreed Currency that the Secured Party is able to purchase with the amount of the other currency that it received is less than the amount due to it in connection with that Obligation, the Guarantors remain liable to the Secured Party for any deficiency, together with interest in accordance with section 2.08(Interest). |
The Secured Party will only release and discharge this guarantee by executing and delivering to the Guarantors an express written discharge at the Guarantors’ sole expense. This guarantee will not be satisfied or discharged, in whole or in part, by any intermediate payment of all or any part of the Obligations.
This guarantee will continue to be effective or will be reinstated, as the case may be, if, at any time, the Secured Party rescinds or otherwise returns, for any reason (including in connection with the insolvency, bankruptcy, or reorganization of the Debtor or the Guarantors or any allegation that the Secured Party received a payment in the nature of a preference), all or any part of any payment of any of the Obligations, all as though that payment had not been made.
The Secured Party may accelerate the maturity date of the Obligations as provided in the Debenture for the purposes of this guarantee, notwithstanding any stay existing under any bankruptcy, insolvency, reorganization, or other similar Law of any jurisdiction preventing that acceleration.
The Secured Party may, at any time and from time to time, set-off and apply any counterclaim (including liabilities in respect of any monies that the Guarantors deposited with it, being general or special, time or demand, provisional or final, in whatever currency) that the Secured Party holds and other obligations (in whatever currency) that the Secured Party owes to or for the credit or the account of the Guarantors against any and all of any Guarantor's liabilities now or later existing under this guarantee irrespective of whether or not the Secured Party has made any Demand under this guarantee and although those Guarantors’ liabilities may be unliquidated, contingent, or unmatured. The Secured Party’s rights under this section are in addition to other rights and remedies (including other rights of set-off, consolidation of accounts, and bankers’ lien) that the Secured Party may have.
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ARTICLE 3
ABSOLUTE LIABILITY; DEALINGS WITH THE DEBTOR AND OTHERS
The Guarantors’ liability under this guarantee is absolute and unconditional irrespective of, and is not limited, released, discharged, or otherwise affected by
| (c) | any limitation, postponement, subordination, prohibition, or other restriction on the Secured Party’s rights and remedies in connection with the Obligations (including any court order that purports to prohibit or suspend the acceleration of the time for payment of any of the Obligations, the Debtor’s payment of any of the Obligations, or the Secured Party’s rights and remedies against the Debtor in connection with the Obligations), |
| (d) | any insolvency, bankruptcy, winding-up, liquidation, dissolution, amalgamation, reorganization, or other similar proceeding affecting the Debtor, any Guarantor, the Secured Party, or any other Person, |
| (l) | any other applicable Law or other circumstance that might otherwise constitute, in whole or in part, a legal or equitable defence available to, or complete or |
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partial legal or equitable discharge of, any Guarantor, the Debtor, or any other Person in connection with any or all of the Obligations or any Guarantor’s liability under this guarantee.
Each Guarantor waives each of the defences noted above to the fullest extent permitted under applicable Law.
Without limiting the generality of the preceding sentence and without limiting, releasing, discharging, or otherwise affecting, in whole or in part, each Guarantor’s liability under this guarantee, the Secured Party may, from time to time and without giving Notice to or obtaining the consent of any Guarantor,
| (b) | make any change to the time, manner, or place of payment under, or to any other term of, the Transaction Documents (including supplementing or replacing any of those agreements), |
| (c) | waive the Debtor’s failure to carry out any of its obligations under any of the Transaction Documents, |
| (d) | release any Guarantor of the Obligations hereunder, |
| (e) | grant renewals, extensions of time, indulgences, releases, and discharges to the Debtor or any other Person, |
(iii) otherwise deal with that security or collateral in any manner it sees fit (including enforcing that security, whether in an improvident or commercially unreasonably manner as a result of the Secured Party’s negligence, recklessness, or wilful action or inaction, or otherwise, and regardless of any duty that the Secured Party might have to the Debtor under applicable Law in connection with the enforcement of that security),
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other disposition of any property securing the Obligations or any guarantee thereof, or any defect in any notice of sale or other disposition,
Each Guarantor waives each of the above defences to the fullest extent permitted under applicable Law.
If any limitation period applies to any claim for payment of the Obligations or remedy for enforcement of the Obligations, then
| (c) | any applicable limitation period begins only after the Secured Party expressly Demands that the Guarantors pay the Obligations, |
| (a) | Before a Demand is made under this guarantee, the Secured Party need not |
| (b) | Each Guarantor renounces all benefits of discussion and division. |
ARTICLE 4
ASSIGNMENT, POSTPONEMENT, AND SUBROGATION
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Secured Party and (ii) postpones the Postponed Indebtedness to the payment of the Obligations.
| (c) | The Secured Party may (i) apply any monies that it receives under this section (including monies derived from any instrument and any other property) against any Obligations, (ii) hold those monies as continuing security for the Guarantors’ liability, or (iii) release those monies to the Guarantors (or, for the avoidance of doubt, any Guarantor), all as the Secured Party may see fit and without lessening, limiting, or otherwise affecting any Guarantor’s liability under this guarantee. |
(ii) postpones and subordinates that Postponed Security and those security interests constituted by that Postponed Security to all present and future security and security interests that the Secured Party holds in connection with the Obligations, regardless of the order of execution, delivery, registration, or perfection of that security or those security interests, the order of advancement of funds, the order of crystallization of security, or any other matter that may affect the relative priorities of that security or those security interests. No Guarantor shall initiate or take any action to enforce any Postponed Security without the Secured Party’s prior written consent.
| (ii) | all other Obligations are performed and indefeasibly paid in full in cash. |
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Upon either (a) the Debtor’s liquidation, winding up, or bankruptcy (whether voluntary or compulsory) or (b) the Debtor making a bulk sale of any of its assets within the bulk transfer provisions of any applicable Law, any composition with creditors, or any scheme of arrangement, the Secured Party’s claim will rank in priority to that of any Guarantor in connection with the Obligations and the Secured Party will receive in priority to the Guarantors all dividends or other payments in connection with the Obligations until the Secured Party’s claim has been paid in full, all without prejudice to the Secured Party’s claim against the Guarantors. The Guarantors will remain liable to the Secured Party for any remaining unpaid balance of the Obligations. In the event of the Secured Party’s valuation of any securities, that valuation will not, as between the Secured Party and the Guarantors, be considered payment, satisfaction, or reduction in whole or in part of any Obligations.
ARTICLE 5
GUARANTOR’S REPRESENTATIONS AND WARRANTIES
The Guarantors each hereby represent and warrant to the Secured Party as follows, acknowledging that the Secured Party is relying on these representations and warranties:
It is a corporation incorporated and existing under the laws of the jurisdiction of its incorporation.
It has the corporate power and capacity to carry on business, to own properties and assets, and to execute, deliver, and perform its obligations under this guarantee.
It has taken all necessary corporate action to authorize its execution and delivery of, and the performance of its obligations under, this guarantee.
It has duly executed and delivered this guarantee.
The execution, delivery, and performance of its obligations under this guarantee (including the payment, observance, or performance of the Obligations) do not and will not
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| (a) | breach or result in a default under |
| (ii) | any Law to which it is subject, |
| (iv) | any material agreement to which it is a party or by which it is bound, or |
It is not required to take any action or obtain approval, authorization, consent, or order of, or make any filing, registration, qualification, or recording with, any Governmental Body or any other Person in connection with the execution or delivery of, or the performance of its obligations under, this guarantee.
No proceedings have been taken or authorized by it or, to its knowledge, by any other Person relating to its bankruptcy, insolvency, liquidation, dissolution, or winding up.
ARTICLE 6 ACKNOWLEDGEMENTS
The parties have each participated in settling the terms of this guarantee. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this guarantee.
The Guarantors shall pay all costs and expenses (including legal fees, as applicable), that it and the Secured Party, or its agents on its behalf, incur in connection with the drafting and negotiation of the transactions contemplated by this guarantee, and the execution and delivery of, and the perfection and enforcement of the Secured Party’s interest under, this guarantee, which will be paid immediately upon demand and form part of the Obligations.
ARTICLE 7 RIGHTS AND REMEDIES
The rights, remedies, and powers provided to a party under this guarantee are cumulative and in addition to, and are not exclusive of or in substitution for, any rights, remedies, and powers otherwise available to that party.
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This guarantee is in addition to and not in substitution for any other guarantee, security, or agreement now or later held by the Secured Party in connection with the Debtor or the Obligations.
The provisions of section 2.09 (Taxes) survive the payment in full of the Obligations and the termination of this guarantee.
The invalidity or unenforceability of any particular term of this guarantee will not affect or limit the validity or enforceability of the remaining terms.
ARTICLE 8 GENERAL
This guarantee together with the Debenture and the other Transaction Documents:
Each party, upon receipt of Notice by another party, shall sign (or cause to be signed) all further documents, do (or cause to be done) all further acts, and provide all reasonable assurances as may reasonably be necessary or desirable to give effect to this guarantee and the transactions contemplated by this guarantee.
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This guarantee may only be amended by a written document signed by each of the parties.
If there is any inconsistency between the terms of this guarantee and the terms of the Debenture, the terms of the Debenture will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of that agreement.
This guarantee enures to the benefit of and binds the parties and their respective successors and permitted assigns.
The Secured Party possesses and will possess information relating to the Debtor that is and may be material to this guarantee. The Secured Party has no obligation to disclose to the Guarantors any information that it may now or later possess concerning the Debtor.
If the Debtor amalgamates with any other entity or entities, this guarantee will continue in full force and effect and, for greater certainty
The Secured Party may assign this guarantee and the Obligations in whole or in part to any Person without Notice to or the consent of the Guarantor. Without the prior written consent of the Secured Party, the Guarantors may not assign this guarantee.
Each Guarantor acknowledges and agrees that it is jointly and seerally liable for all liabilities, obligaitons, representations and warranties of the Guarantors set forth in this guarantee, including the guarantee of the Obligations under Section 2.01 hereof.
To be effective, a Notice must be in writing and given in the manner contemplated in the Debenture, and the provisions of section 7.8 thereof are incorporated herein mutatis mutandis.
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The laws of the Province of Ontario and the laws of Canada applicable in that province, excluding any rule or principle of conflicts of law that may provide otherwise, govern this guarantee.
The Guarantor irrevocably attorns to the jurisdiction of the courts of Ontario, which will have non-exclusive jurisdiction over any matter arising out of this guarantee.
The Guarantors acknowledge receipt of an executed copy of this guarantee.
Possession by the Secured Party of an executed copy of this guarantee constitutes conclusive evidence that
| (c) | the Secured Party has not made any representations, statements, or promises to the Guarantors regarding the Debtor, the Secured Party’s intention to obtain any security in connection with the Obligations or guarantees from other persons in connection with the Obligations, the circumstances under which the Secured Party may enforce this guarantee, the manner in which the Secured Party may enforce this guarantee, or any other matter that might conflict with the provisions expressly set out in this guarantee. |
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This guarantee may be signed in any number of counterparts, each of which is an original, and all of which taken together constitute one single document.
This guarantee is effective as of the date shown at the top of the first page, even if any signatures are made after that date.
[The remainder of this page has been intentionally left blank]
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DocuSign Envelope ID: F7882DFF-6C88-4903-8373-AAA8EA3005C9
IN WITNESS WHEREOF the Secured Party and the Guarantors have executed this Guarantee and Indemnity.
CENTURION FINANCIAL TRUST
By:
Name: Xxxx Xxxxxxx
Title:
President
By:
Name:
Title:
ASSURE HOLDINGS INC.ASSURE NEUROMONITORING, LLC
By: By:
Name:Name:
Title:Title:
By: By:
Name:Name:
Title:Title
ASSURE NETWORKS, LLCASSURENEUROMONITORINGCOLORADO,
LLC
By: By:
Name:Name:
Title:Title:
By: By:
Name:Name:
Title:Title
Signature page – Guarantee and Indemnity
DocuSign Envelope ID: 2E7E9E88-A9EC-4950-A467-XXXX00000000
IN WITNESS WHEREOF the Secured Party and the Guarantors have executed this Guarantee and Indemnity.
CENTURION FINANCIAL TRUST
By:
Name:
Title:
By:
Name:
Title:
ASSURE HOLDINGS INC.ASSURE NEUROMONITORING, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: President
By:
Name:
Title:
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title
ASSURE NETWORKS, LLCASSURENEUROMONITORINGCOLORADO,
LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title
Signature page – Guarantee and Indemnity
DocuSign Envelope ID: 2E7E9E88-A9EC-4950-A467-XXXX00000000
ASSURE NEUROMONITORING LOUISIANA, LLC
ASSURE NEUROMONITORING MICHIGAN, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURE NEUROMONITORING PENNSYLVANIA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURE NEUROMONITORING TEXAS, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURE NEUROMONITORING TEXAS HOLDINGS, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
DNS LOUISIANA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURE NEUROMONITORING ARIZONA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURENEUROMONITORINGMINNESOTA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name: Title:
Signature page – Guarantee and Indemnity
DocuSign Envelope ID: 2E7E9E88-A9EC-4950-A467-XXXX00000000
ASSURE NEUROMONITORING NEVADA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
DNS PROFESSIONAL READING, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name:
Title:
ASSURE NEUROMONITORING SOUTH CAROLINA, LLC
By:
Name: Xxxx Xxxxxxxxx
Title: Manager
By:
Name: Title:
Signature page – Guarantee and Indemnity
Assure Holdings Inc.
Assure Neuromonitoring, LLC Assure Networks, LLC
Assure Neuromonitoring Colorado, LLC
SCHEDULE A GUARANTORS
Assure Neuromonitoring Louisiana, LLC Assure Neuromonitoring Michigan, LLC Assure Neuromonitoring Pennsylvania, LLC Assure Neuromonitoring Texas, LLC
Assure Neuromonitoring Texas Holdings, LLC DNS Louisiana, LLC
Assure Neuromonitoring Nevada, LLC Assure Neuromonitoring South Carolina, LLC Assure Neuromonitoring Colorado, LLC
DNS Professional Reading, LLC
