UNLIMITED GUARANTY
Exhibit 10.2
GUARANTY, dated as of August 2, 2007 made by MICROFINANCIAL INCORPORATED, a Massachusetts
corporation (the “Guarantor”), in favor of SOVEREIGN BANK, in its capacity as Agent (in
such capacity, the “Agent”) for the Lenders under the Credit Agreement dated as of the date
hereof among TimePayment Corp., a Delaware corporation (the “Borrower”), the Agent and the
Lenders named therein (the “Credit Agreement”). Unless otherwise defined herein, the terms
defined in the Credit Agreement are used herein as defined in the Credit Agreement
WHEREAS, the Borrower is a wholly owned subsidiary of the Guarantor, and the Borrower and the
Guarantor will benefit, directly or indirectly, from the extensions of credit to be made under the
Credit Agreement.
NOW, THEREFORE, in order to induce the Agent and the Lenders to enter into the Credit
Agreement and to make or extend one or more loans, advances or other extensions of credit upon the
terms and subject to the conditions set forth in the Credit Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Guarantor
agrees as follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby guarantees to the Agent
and the Lenders the full and punctual payment when due (whether at maturity, by acceleration or
otherwise), and the performance, of all Obligations. This Guaranty is an absolute, unconditional
and irrevocable guaranty of the full and punctual payment and performance of the Obligations and
not of their collectibility only and is in no way conditioned upon any requirement that the Agent
first attempt to collect any of the Obligations from the Borrower or resort to any security or
other means of obtaining their payment. Should the Borrower default in the payment or performance
of any of the Obligations, the obligations of the Guarantor hereunder shall become immediately due
and payable to the Agent and the Lenders, without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor hereunder may be required by the
Agent on any number of occasions.
2. GUARANTOR’S AGREEMENT TO PAY. The Guarantor further agrees, as the principal
obligor and not as a guarantor only, to pay to the Agent, on demand, all costs and expenses
(including court costs and reasonable legal expenses) incurred or expended by the Agent in
connection with the Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this Guaranty from the time such amounts become due until payment, at
the rate per annum equal to the rate of interest equal to the Base Rate, plus a margin of four
percent (4.00%); 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.
3. UNLIMITED GUARANTY. The liability of the Guarantor hereunder shall be unlimited.
4. WAIVERS BY GUARANTOR; BANK’S FREEDOM TO ACT. The 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 Agent with respect thereto. To the extent permitted by
applicable law, the Guarantor waives presentment, demand, protest, notice of acceptance, notice of
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 Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, the Guarantor, to the extent permitted by
applicable law, agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the obligations of the Guarantor
hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i)
the failure of the Agent to assert any claim or demand or to enforce any right or remedy against
the Borrower; (ii) any extensions or renewals of any Obligation; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or provisions of any agreement evidencing, securing
or otherwise executed in connection with any Obligation; (iv) the substitution or release of any
entity primarily or secondarily liable for any Obligation; (v) the adequacy of any rights the Agent
may have against any collateral or other means of obtaining repayment of the Obligations; (vi) the
impairment of any collateral securing the Obligations, including without limitation the failure to
perfect or preserve any rights the Agent might have in such collateral or the substitution,
exchange, surrender, release, loss or destruction of any such collateral; or (vii) any other act or
omission which might in any manner or to any extent vary the risk of the Guarantor or otherwise
operate as a release or discharge of the Guarantor, all of which may be done without notice to the
Guarantor.
5. COMPLIANCE WITH CREDIT AGREEMENT. The Guarantor agrees to cause each of the
Borrower and the Guarantor’s Subsidiaries to observe, perform, comply with and be bound by all of
the covenants set forth in the Credit Agreement. Furthermore, the Guarantor agrees to observe,
perform, comply with and be bound by all of the covenants set forth in the Credit Agreement as if
each such covenant were made by the Guarantor with each reference therein to the “Borrower” changed
to the “Guarantor”, other than the following: Section 5.7 (Use of Proceeds), Section 5.10
(Borrower’s Cash Accounts), Section 6.4 (Asset Quality) and Section 7.6 (Restricted Payments).
6. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any reason the Borrower
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 Borrower by operation of law or for any
other reason, this Guaranty shall nevertheless be binding on the Guarantor to the same extent as if
the Guarantor at all times had been the principal obligor on all such Obligations. In the event
that acceleration of the time for payment of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, or for any other
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reason, all such amounts otherwise subject to acceleration under the terms of any agreement
evidencing, securing or otherwise executed in connection with any Obligation shall be immediately
due and payable by the Guarantor.
7. WAIVER OF SUBROGATION. Until the payment and performance in full of all
Obligations and any and all obligations of the Borrower to the Lenders, the Guarantor shall not
exercise any rights against the Borrower arising as a result of payment by the Guarantor hereunder,
by way of subrogation or otherwise, and will not prove any claim in competition with the Agent or
the Lenders in respect of any payment hereunder in bankruptcy or insolvency proceedings of any
nature; the Guarantor will not claim any set-off or counterclaim against the Borrower in respect of
any liability of the Guarantor to the Borrower; the Guarantor waives any benefit of and any right
to participate in any collateral which may be held by the Agent or the Lenders; and notwithstanding
any other provision to the contrary contained herein, the Guarantor hereby irrevocably waives any
and all rights it may have at any time (whether arising directly or indirectly, by operation of law
or by contract) to assert any claim against the Borrower on account of payments made under this
Guaranty, including, without limitation, any and all rights of or claim for subrogation,
contribution, reimbursement, exoneration and indemnity.
8. SUBORDINATION. The payment of any amounts due with respect to any indebtedness of
the Borrower now or hereafter held by the Guarantor is hereby subordinated to the prior payment in
full of the Obligations. The Guarantor agrees that the Guarantor will not demand, xxx for or
otherwise attempt to collect any such indebtedness of the Borrower to the Guarantor until the
Obligations shall have been paid in full. If, notwithstanding the foregoing sentence, the
Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor as trustee for the Agent and be
paid over to the Agent on account of the Obligations without affecting in any manner the liability
of the Guarantor under the other provisions of this Guaranty.
9. SECURITY; SET-OFF. Regardless of the adequacy of any Collateral or any other means
of obtaining repayment for any Obligations, any deposits, balances or other sums credited by or due
from the head office of the Agent, any Lender or any of their branch offices to Guarantor and any
property of Guarantor now or hereafter in the possession, custody, safekeeping or control of the
Agent or any Lender or in transit to the Agent or any Lender may, at any time and from time to
time, without notice to the Guarantor or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law, or otherwise (all of which are hereby expressly waived
by the Guarantor) and to the fullest extent permitted by law, set off, appropriated and applied by
the Agent or any Lender against any and all Obligations of the Guarantor in such manner as the head
office of the Agent, any Lender or any of their branch offices in their sole discretion may
determine, and the Guarantor hereby grants the Agent and each Lender a continuing security interest
in such deposits, balances, other sums and property for the payment and performance of all such
Obligations and although such Obligations may be contingent or unmatured. ANY AND ALL RIGHTS TO
REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, BALANCES, OTHER SUMS AND PROPERTY OF THE GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY
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AND IRREVOCABLY WAIVED. Agent, Lender or the branch office, as the case may be, will provide
prompt notice to the Guarantor of any setoff hereunder.
10. FURTHER ASSURANCES. The Guarantor authorizes the Agent to file any financing
statement deemed by the Agent to be necessary or desirable to perfect any security interest granted
by the Guarantor to the Agent, and as agent for the Guarantor, to sign the name of the Guarantor
thereto. The Guarantor also agrees to do all such things and execute all such documents, as the
Agent may consider necessary or desirable to give full effect to this Guaranty and to perfect and
preserve the rights and powers of the Agent hereunder, and the Guarantor hereby authorizes the
Agent to file such UCC financing statements and amendments as may be deemed necessary or desirable
by the Agent.
11. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the Guarantor, its
successors and assigns, and shall inure to the benefit of and be enforceable by the Agent and its
successors, transferees and assigns under the Credit Agreement.
12. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by the Guarantor therefrom shall be effective unless the same shall be
in writing and signed by the Agent. No failure on the part of the Agent 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.
13. NOTICES. All notices hereunder shall be given in the same manner as set forth in
Section 11.1 of the Credit Agreement, provided that the Borrower’s address for notices shall
constitute the Guarantor’s address for notices, and any notice given to Borrower in accordance with
the terms of such Section shall be deemed to be given to the Guarantor.
14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS A CONTRACT UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE GUARANTOR CONSENTS TO THE JURISDICTION OF ANY OF THE FEDERAL OR STATE COURTS
LOCATED IN SUFFOLK COUNTY IN THE COMMONWEALTH OF MASSACHUSETTS IN CONNECTION WITH ANY SUIT TO
ENFORCE THE RIGHTS OF THE AGENT AND THE LENDERS UNDER THIS GUARANTY AND CONSENTS TO SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH OBLIGOR IN THE MANNER PROVIDED IN SECTION 13 ABOVE.
THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH ACTION BROUGHT IN THE COURTS REFERRED TO IN THIS SECTION AND IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH ACTION THAT SUCH ACTION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15. Waiver of Jury Trial. EACH OF THE GUARANTOR AND THE AGENT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT
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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 THEREUNDER, THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF THE AGENT RELATING TO THE ADMINISTRATION OR ENFORCEMENT OF THIS
GUARANTY, AND AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CAN NOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH OF THE
GUARANTOR AND THE AGENT HEREBY WAIVES ANY RIGHT 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. THE GUARANTOR (a) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR LENDERS HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (b)
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS TO WHICH EACH IS A PARTY BECAUSE OF, AMONG OTHER THINGS, THE GUARANTOR’S
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
15. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the Guarantor
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 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.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed under seal and
delivered by its duly authorized officer, as of the date first above written.
| GUARANTOR: MICROFINANCIAL INCORPORATED |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | President | |||
[SIGNATURE TO MFI GUARANTY]
CERTIFICATE
The undersigned certifies to Sovereign Bank that:
1. He is the President of the Guarantor which executed the foregoing Guaranty and in that
capacity has the authority to make this certificate on behalf of the Guarantor.
2. The Guarantor is a corporation, validly organized or formed and existing in good standing
and in the full enjoyment of its powers and franchises under the laws of The Commonwealth of
Massachusetts.
3. The foregoing Guaranty has been duly executed and delivered on behalf of the Guarantor,
such actions have been duly authorized by all necessary corporate or other action, and the
execution, delivery and performance of the Guaranty by the Guarantor will not contravene any
existing law, rule or regulation, or any provision of its certificate of incorporation or by-laws
or other document or documents evidencing its establishment or governing the conduct of its affairs
or any agreement to which it is a party or by which it is bound.
IN WITNESS WHEREOF, the undersigned has made this certificate on behalf of the Guarantor this
2nd day of August, 2007.
| Xxxxxxx X. Xxxxxx |
[Seal]
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