GUARANTY
GUARANTY,
dated as of November 30, 2007, by the Guarantors identified as such on the
signature pages hereof (the “Guarantors”,
and
individually, a “Guarantor”)
in
favor of (i) Woodside Agency Services, LLC, as collateral agent (hereinafter,
in
such capacity, the “Collateral Agent”)
for
itself and the Holders (as such term is defined in the Purchase Agreement
referred to below) under the Securities Purchase and Loan Agreement, dated
as of
November 30, 2007 (as amended and in effect from time to time, the “Purchase
Agreement”),
among
National Investment Managers Inc., a Florida corporation (the “Company”),
the
Holders and the Collateral Agent and (ii) each of the Holders.
WHEREAS,
the Company and the Guarantors are members of a group of related corporations,
the success of any one of which is dependent in part on the success of the
other
members of such group;
WHEREAS,
each Guarantor expects to receive substantial direct and indirect benefits
from
the extensions of credit accommodations to the Company by the Holders pursuant
to the Purchase Agreement (which benefits are hereby acknowledged);
WHEREAS,
it is a condition precedent to the Holders’ extending any credit accommodations
to the Company under the Purchase Agreement that the Guarantors execute and
deliver to the Collateral Agent and the Holders, a guaranty substantially in
the
form hereof; and
WHEREAS,
each Guarantor wishes to guaranty the Company’s obligations to the Holders and
the Collateral Agent under or in respect of the Purchase Agreement as provided
herein;
NOW,
THEREFORE, the Guarantor hereby agrees with the Holders and the Collateral
Agent
as follows:
1. Definitions.
The
term “Obligations” and all other capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Purchase
Agreement.
2. Guaranty
of Payment and Performance.
Each
Guarantor hereby guarantees to the Holders and the Collateral Agent the full
and
punctual payment when due (whether at stated maturity, by required pre-payment,
by acceleration or otherwise), as well as the performance, of all of the
Obligations including all such which would become due but for the operation
of
the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code and the
operation of §§502(b) and 506(b) of the Federal Bankruptcy Code. This Guaranty
is an absolute, unconditional and continuing guaranty of the full and punctual
payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that
the
Collateral Agent or any Holder first attempt to collect any of the Obligations
from the Company or resort to any collateral security or other means of
obtaining payment. Should the Company default in the payment or performance
of
any of the Obligations, the obligations of each Guarantor hereunder with respect
to such Obligations in default shall, upon demand by the Collateral Agent or
the
Majority Holders, become immediately due and payable to the Collateral Agent,
for the benefit of the Holders and the Collateral Agent, without demand or
notice of any nature, all of which are expressly waived by each Guarantor.
Payments by each Guarantor hereunder may be required by the Collateral Agent
or
the Marjority Holders on any number of occasions.
3. Guarantors’
Agreement to Pay Enforcement Costs, etc.
Each
Guarantor further agrees, as the principal obligor and not as a guarantor only,
to pay to the Collateral Agent, on demand, all costs and expenses (including
court costs and legal expenses) incurred or expended by the Collateral Agent
or
any Holder in connection with the Obligations, this Guaranty and the enforcement
thereof, together with interest on amounts recoverable under this §3 from the
time when such amounts become due until payment, whether before or after
judgment, at the rate of interest for overdue principal set forth in the
Purchase Agreement, provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
4. Waivers
by Guarantors; Holders’ Freedom to Act.
Each
Guarantor agrees that the Obligations will be paid and performed strictly in
accordance with their respective terms, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms
or the rights of the Collateral Agent or any Holder with respect thereto. Each
Guarantor waives promptness, diligence, presentment, demand, protest, notice
of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
require the marshalling of assets of the Company or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations,
and all suretyship defenses generally. Without limiting the generality of the
foregoing, each Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any Obligation and agrees
that
the obligations of such Guarantor hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (i) the failure of the Collateral
Agent or any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other entity or other person primarily or
secondarily liable with respect to any of the Obligations; (ii) any extensions,
compromise, refinancing, consolidation or renewals of any Obligation; (iii)
any
change in the time, place or manner of payment of any of the Obligations or
any
rescissions, waivers, compromise, refinancing, consolidation or other amendments
or modifications of any of the terms or provisions of the Purchase Agreement,
the other Financing Agreements or any other agreement evidencing, securing
or
otherwise executed in connection with any of the Obligations, (iv) the addition,
substitution or release of any entity or other person primarily or secondarily
liable for any Obligation; (v) the adequacy of any rights which the Collateral
Agent or any Holder may have against any collateral security or other means
of
obtaining repayment of any of the Obligations; (vi) the impairment of any
collateral securing any of the Obligations, including without limitation the
failure to perfect or preserve any rights which the Collateral Agent or any
Holder might have in such collateral security or the substitution, exchange,
surrender, release, loss or destruction of any such collateral security; or
(vii) any other act or omission which might in any manner or to any extent
vary
the risk of such Guarantor or otherwise operate as a release or discharge of
such Guarantor, all of which may be done without notice to such Guarantor.
To
the fullest extent permitted by law, each Guarantor hereby expressly waives
any
and all rights or defenses arising by reason of (A) any “one action” or
“anti-deficiency” law which would otherwise prevent the Collateral Agent or any
Holder from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
such Guarantor before or after the Collateral Agent’s or such Holder’s
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Collateral Agent
or
any Holder.
-2-
5. Unenforceability
of Obligations Against Company.
If for
any reason the Company has no legal existence or is under no legal obligation
to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Company by reason of the Company’s insolvency, bankruptcy
or reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on each Guarantor to the same extent
as
if such Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any
of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization
of
the Company, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Purchase Agreement, the other Financing
Agreements, or any other agreement evidencing, securing or otherwise executed
in
connection with any Obligation shall be immediately due and payable by each
Guarantor.
6. Subrogation;
Subordination.
6.1. Waiver
of Rights Against Company.
Until
the final payment and performance in full of all of the Obligations, each
Guarantor shall not exercise and hereby waives any rights against the Company
arising as a result of payment by such Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will
not
prove any claim in competition with the Collateral Agent or any Holder in
respect of any payment hereunder in any bankruptcy, insolvency or reorganization
case or proceedings of any nature; each Guarantor will not claim any setoff,
recoupment or counterclaim against the Company in respect of any liability
of
such Guarantor to the Company; and each Guarantor waives any benefit of and
any
right to participate in any collateral security which may be held by the
Collateral Agent or any Holder.
6.2. Subordination.
The
payment of any amounts due with respect to any indebtedness of the Company
for
money borrowed or credit received now or hereafter owed to any Guarantor is
hereby subordinated to the prior payment in full of all of the Obligations.
Each
Guarantor agrees that, after the occurrence of any default in the payment or
performance of any of the Obligations, such Guarantor will not demand, xxx
for
or otherwise attempt to collect any such indebtedness of the Company to such
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, such Guarantor shall collect, enforce
or
receive any amounts in respect of such indebtedness while any Obligations are
still outstanding, such amounts shall be collected, enforced and received by
such Guarantor as trustee for the Holders and the Collateral Agent and be paid
over to the Collateral Agent, for the benefit of the Holders and the Collateral
Agent, on account of the Obligations without affecting in any manner the
liability of such Guarantor under the other provisions of this
Guaranty.
-3-
6.3. Provisions
Supplemental.
The
provisions of this §6 shall be supplemental to and not in derogation of any
rights and remedies of the Holders and the Collateral Agent under any separate
subordination agreement which the Collateral Agent or any Holder may at any
time
and from time to time enter into with the Guarantors for the benefit of the
Holders and the Collateral Agent.
7. Security;
Setoff.
Each
Guarantor grants to each of the Collateral Agent and the Holders, as security
for the full and punctual payment and performance of all of such Guarantor’s
obligations hereunder, a continuing lien on and security interest in all
securities or other property belonging to such Guarantor now or hereafter held
by the Collateral Agent or such Holder and in all deposits (general or special,
time or demand, provisional or final) and other sums credited by or due from
the
Collateral Agent or such Holder to such Guarantor or subject to withdrawal
by
such Guarantor. Regardless of the adequacy of any collateral security or other
means of obtaining payment of any of the Obligations, each of the Collateral
Agent and the Holders is hereby authorized at any time and from time to time,
without notice to any Guarantor (any such notice being expressly waived by
each
Guarantor) and to the fullest extent permitted by law, to set off and apply
such
deposits and other sums against the obligations of any Guarantor under this
Guaranty, whether or not the Collateral Agent or such Holder shall have made
any
demand under this Guaranty and although such obligations may be contingent
or
unmatured.
8. Further
Assurances.
Each
Guarantor agrees that it will from time to time, at the request of the
Collateral Agent or the Majority Holders, do all such things and execute all
such documents as the Collateral Agent or the Majority Holders may consider
necessary or desirable to give full effect to this Guaranty and to perfect
and
preserve the rights and powers of the Holders and the Collateral Agent
hereunder. Each Guarantor acknowledges and confirms that such Guarantor itself
has established its own adequate means of obtaining from the Company on a
continuing basis all information desired by such Guarantor concerning the
financial condition of the Company and that such Guarantor will look to the
Company and not to the Collateral Agent or any Holder in order for such
Guarantor to keep adequately informed of changes in the Company’s financial
condition.
9. Termination;
Reinstatement.
This
Guaranty shall remain in full force and effect until the final and indefeasible
payment in full in cash of all of the Obligations. This Guaranty shall be
reinstated, notwithstanding the foregoing, if at any time any payment made
with
respect to any Obligation is rescinded or must otherwise be returned by the
Collateral Agent or any Holder upon the insolvency, bankruptcy or reorganization
of the Company, or otherwise, all as though such payment had not been made
or
value received.
10. Successors
and Assigns.
This
Guaranty shall be binding upon each Guarantor, its successors and assigns,
and
shall inure to the benefit of the Collateral Agent and the Holders and their
respective successors, transferees and assigns. No Guarantor may assign any
of
its obligations hereunder.
-4-
11. Amendments
and Waivers.
No
amendment or waiver of any provision of this Guaranty nor consent to any
departure by any Guarantor therefrom shall be effective unless the same shall
be
in writing and signed by the Collateral Agent with the consent of the Majority
Holders. No failure on the part of the Collateral Agent or any Holder to
exercise, and no delay in exercising, any right hereunder shall operate as
a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
12. Notices.
All
notices and other communications called for hereunder shall be made in writing
and, unless otherwise specifically provided herein, shall be deemed to have
been
duly made or given when delivered by hand or mailed first class, postage
prepaid, or, in the case of telegraphic or telexed notice, when transmitted,
answer back received, addressed as follows: if to a Guarantor, at the address
set forth beneath its signature hereto, and if to the Collateral Agent or any
Holder, at the address for notices to the Collateral Agent or such Holder set
forth in Section 17 of the Purchase Agreement, or at such address as any such
party may designate in writing to the other.
13. Governing
Law; Consent to Jurisdiction.
THIS
GUARANTY IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS. Each Guarantor agrees that any suit for the enforcement of this
Guaranty may be brought in the courts of the Commonwealth of Massachusetts
or
any federal court sitting therein and consents to the nonexclusive jurisdiction
of such court and to service of process in any such suit being made upon such
Guarantor by mail at the address specified by reference in §12. Each Guarantor
hereby waives any objection that it may now or hereafter have to the venue
of
any such suit or any such court or that such suit was brought in an inconvenient
court.
14. Waiver
of Jury Trial.
EACH
GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS
OR
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS.
Except as prohibited by law, each Guarantor hereby waives any right which it
may
have to claim or recover in any litigation referred to in the preceding sentence
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. Each Guarantor (i) certifies that
neither the Collateral Agent nor any Holder nor any representative, agent or
attorney of the Collateral Agent or any Holder has represented, expressly or
otherwise, that the Collateral Agent or any Holder would not, in the event
of
litigation, seek to enforce the foregoing waivers and (ii) acknowledges that,
in
entering into the Purchase Agreement and the other Financing Agreements to
which
the Collateral Agent or any Holder is a party, the Collateral Agent and the
Holders are relying upon, among other things, the waivers and certifications
contained in this §14.
-5-
15. Miscellaneous.
This
Guaranty constitutes the entire agreement of the Guarantors with respect to
the
matters set forth herein. The rights and remedies herein provided are cumulative
and not exclusive of any remedies provided by law or any other agreement, and
this Guaranty shall be in addition to any other guaranty of or collateral
security for any of the Obligations. The invalidity or unenforceability of
any
one or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are for the ease of
reference only and shall not affect the meaning of the relevant provisions.
The
meanings of all defined terms used in this Guaranty shall be equally applicable
to the singular and plural forms of the terms defined.
16. Contribution.
To the
extent any Guarantor makes a payment hereunder in excess of the aggregate amount
of the benefit received by such Guarantor in respect of the extensions of credit
accommodations under the Purchase Agreement (the “Benefit
Amount”),
then
such Guarantor, after the payment in full, in cash, of all of the Obligations,
shall be entitled to recover from each other guarantor of the Obligations such
excess payment, pro
rata,
in
accordance with the ratio of the Benefit Amount received by each such other
guarantor to the total Benefit Amount received by all guarantors of the
Obligations, and the right to such recovery shall be deemed to be an asset
and
property of such Guarantor so funding; provided,
that
all such rights to recovery shall be subordinated and junior in right of payment
to the final and indefeasible payment in full in cash of all of the
Obligations.
-6-
IN
WITNESS WHEREOF,
each
Guarantor has caused this Guaranty to be executed and delivered as of the date
first above written.
|
ABR
ADVISORS, INC.
|
|
ASSET
PRESERVATION CORP.
|
|
BENEFIT
DYNAMICS, INC.
|
|
BENEFIT
MANAGEMENT INC.
|
|
BPI/PPA,
INC.
|
|
CIRCLE
PENSION, INC.
|
|
COMPLETE
INVESTMENT MANAGEMENT, INC. OF PHILADELPHIA
|
|
HADDON
STRATEGIC ALLIANCES, INC.
|
|
LAMORIELLO
& CO., INC.
|
|
NATIONAL
ACTUARIAL PENSION SERVICES, INC.
|
|
NATIONAL
ASSOCIATES, INC., N.W.
|
|
PENSION
ADMINISTRATION SERVICES, INC.
|
|
PENTEC,
INC.
|
|
PENTEC
CAPITAL MANAGEMENT, INC.
|
|
SOUTHEASTERN
PENSION SERVICES, INC.
|
|
XXXXXXX
X. XXXXX & ASSOCIATES, INC.
|
|
THE
PENSION ALLIANCE, INC.
|
|
VALLEY
FORGE ENTERPRISES, LTD.
|
|
V.F.
ASSOCIATES, INC.
|
|
VALLEY
FORGE CONSULTING
CORPORATION
|
|
/s/Xxxxxx
Xxxx
|
||
|
Name:Xxxxxx
Xxxx
|
||
