EXHIBIT 10.12
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY"), dated April 1, 2003, is made and
entered into upon the terms hereinafter set forth, by GUIDELINE RESEARCH CORP.,
a New York corporation, TABLINE DATA SERVICES, INC., a New York corporation,
GUIDELINE/CHICAGO, INC., an Illinois corporation, ADVANCED ANALYTICS, INC., a
New York corporation, and GUIDELINE CONSULTING CORP., a New York corporation,
(collectively, "GUARANTOR"), in favor of PETRA MEZZANINE FUND, L.P., a Delaware
limited partnership ("CREDITOR").
RECITALS:
A. Pursuant to a Loan Agreement dated April 1, 2003, by and between
FIND/SVP, INC., a New York corporation ("DEBTOR"), and Creditor (the "LOAN
AGREEMENT"), Creditor has made a loan or otherwise agreed to extend credit to
Debtor in the original principal amount not exceeding $3,000,000 (together with
any extensions, modifications or renewals thereof, herein referred to as the
"LOAN"). The Loan is evidenced by a Promissory Note of even date with the Loan
Agreement, in the Loan amount, made and executed by Debtor, payable to the order
of Creditor (the "NOTE").
B. It is a condition of Creditor's agreement to make the above-described
extension(s) of credit to Debtor that Guarantor execute and deliver this
Guaranty to Creditor.
C. Guarantor desires to execute and deliver this Guaranty to Creditor in
order to induce Creditor to make the above-described extension(s) of credit,
which will be to the direct interest, advantage and benefit of Guarantor.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and to induce Creditor to make loans and other
extensions of credit to Debtor pursuant to the Loan Agreement, Guarantor hereby
agrees as follows:
1. Guarantor hereby guarantees to Creditor the full and prompt payment and
performance of (a) the indebtedness evidenced by the Note, principal and any and
all interest accrued or to accrue thereon, (b) the obligations of Debtor to
Creditor pursuant to the Note, the Loan Agreement and any and all other
instruments, documents and agreements now or hereafter further evidencing,
securing or otherwise related to the indebtedness evidenced by the Note (the
"LOAN DOCUMENTS"), and (c) any and all other indebtedness and obligations of
Debtor to Creditor, direct or contingent whether now existing or hereafter
arising and however evidenced (the aforesaid indebtedness and other obligations
are sometimes herein collectively referred to as
the "GUARANTEED OBLIGATIONS"); provided, however, that the liability of each
Guarantor individually, with respect to the Guarantor's obligations shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Guarantor hereby agrees that if the Guaranteed Obligations are not timely paid
or performed, as the case may be, in accordance with the terms thereof,
Guarantor immediately will pay or perform such Guaranteed Obligations. If for
any reason any payment or obligation in respect of the Guaranteed Obligations
shall be determined at any time to be a voidable preference or otherwise shall
be set aside or required to be returned or repaid, this Guaranty nevertheless
shall remain in full force and effect and shall be fully enforceable against
Guarantor for the payment or obligation set aside, returned or repaid, as well
as any other Guaranteed Obligations still outstanding, notwithstanding the fact
that this Guaranty may have been canceled, released and returned to Guarantor by
Creditor.
2. In addition to the obligations of Guarantor to Creditor pursuant to
PARAGRAPH 1 hereof, Guarantor further agrees to pay any and all expenses
(including attorney's fees) reasonably incurred by Creditor in endeavoring to
collect or enforce the obligations of Guarantor under this Guaranty.
3. Guarantor hereby waives notice of any breach or default by Debtor, and
hereby further waives presentment, demand, notice of dishonor and protest with
respect to any instrument now or hereafter evidencing any of the Guaranteed
Obligations.
4. Any act of Creditor consisting of a waiver of any of the terms,
covenants or conditions of the Guaranteed Obligations, or the giving of any
consent to any matter or thing relating to the Guaranteed Obligations, or the
granting of any indulgences or extensions of time to Debtor, may be done without
notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released or
impaired by (a) Creditor's receipt, application or release of any security at
any time given for the payment, performance or observance of any of the
Guaranteed Obligations, or (b) the release of, or the modification of the
obligations of, any other indorser, surety or guarantor of any of the Guaranteed
Obligations. Similarly, the obligations of Guarantor hereunder shall not be
released or impaired by any amendment to or modification of any of the terms of
the Guaranteed Obligations made by Creditor and Debtor, but in the case of any
such amendment or modification, the liability of Guarantor shall be deemed
modified in accordance with the terms of any such amendment or modification.
6. The liability of Guarantor hereunder shall in no way be affected by (a)
the release or discharge of Debtor in any creditors', receivership, bankruptcy
or other proceedings, (b) the impairment, limitation or modification of the
liability of Debtor or the estate of Debtor in bankruptcy, or of any remedy for
the enforcement of any of the Guaranteed Obligations resulting from the
operation of any present or future provision of the Federal bankruptcy law or
any other statute or the decision of any court, (c) the rejection or
disaffirmance of any instrument, document or agreement evidencing any of the
Guaranteed Obligations in any such proceedings,
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(d) the assignment or transfer of any of the Guaranteed Obligations by Creditor,
(e) the death or dissolution or any disability or other defense of Debtor, or
(f) the cessation from any cause whatsoever of the liability of Debtor with
respect to the Guaranteed Obligations.
7. Until all of the Guaranteed Obligations have been fully paid and
performed, as the case may be, any liability or indebtedness of Debtor now or
hereafter held by Guarantor is and shall be subject and subordinate to the
obligations of Debtor to Creditor under the Guaranteed Obligations.
8. Guarantor hereby waives any claim, right or remedy that Guarantor may
now have or hereafter acquire against Debtor that arises hereunder or from
performance by Guarantor hereunder, including any claim, right or remedy of
subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of Creditor against Debtor or any
collateral now or hereafter securing the Guaranteed Obligations, regardless of
whether such claim, right or remedy arises under contract, by statute, under
common law, in equity or otherwise.
9. This is a guaranty of payment and performance and not of collection.
The liability of Guarantor hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Debtor or any
other person, nor against any collateral available to Creditor. Guarantor hereby
waives any right to require that an action be brought against Debtor or any
other person or to require that resort be had to any collateral in favor of
Creditor prior to discharging its obligations hereunder. Guarantor further
waives any right of Guarantor to require that an action be brought against
Debtor under the provisions of Title 47, Chapter 12, Tennessee Code Annotated,
as the same may be amended from time to time.
10. Guarantor hereby consents and agrees that all payments and credits
received from Debtor or Guarantor or realized from any collateral may be applied
by Creditor to the Guaranteed Obligations in such priority as Creditor in its
sole judgment shall see fit.
11. In the event that Guarantor consists of more than one person or
entity, the obligations of Guarantor hereunder shall be joint and several, and
all references herein to "Guarantor" shall refer to each of said persons or
entities jointly and severally. This Guaranty is assignable by Creditor, and any
assignment of the Guaranteed Obligations or any portion thereof by Creditor
shall operate to vest in the assignee the rights and powers of Creditor
hereunder to the extent of such assignment. This Guaranty shall be binding upon
Guarantor and Guarantor's heirs, representatives, successors,
successors-in-title and assigns, and shall inure to the benefit of Creditor, its
heirs, representatives, successors, successors-in-title and assigns.
12. This Guaranty shall be construed in accordance with and governed by
the laws of the State of Tennessee applicable to contracts to be performed
within said state.
13. No amendment or modification hereof shall be effective unless
evidenced by a writing signed by Guarantor and Creditor. When used herein, the
singular shall include the plural, and vice versa, and the use of any gender
shall include all other genders, as appropriate.
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14. Guarantor hereby waives notice of acceptance of this Guaranty by
Creditor.
15. Any reference herein to any instrument, document or agreement, by
whatever terminology used, shall be deemed to include any and all amendments,
modifications, supplements, extensions, renewals, substitutions or replacements
thereof as the context may require. When used herein, (a) the singular shall
include the plural, and vice versa, and the use of the masculine, feminine or
neuter gender shall include all other genders, as appropriate, (b) "include",
"includes" and "including" shall be deemed to be followed by "without
limitation" regardless of whether such words or words of like import in fact
follow same, and (c) unless the context clearly indicates otherwise, the
disjunctive "or" shall include the conjunctive "and".
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty,
or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
GUARANTOR:
GUIDELINE RESEARCH CORP.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
TABLINE DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
GUIDELINE/CHICAGO, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
ADVANCED ANALYTICS, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
GUIDELINE CONSULTING CORP.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
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ACCEPTED this _____ day of
April, 2003.
PETRA MEZZANINE FUND, L.P.
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx, III
---------------------------------
Xxxxxx X. X'Xxxxx, III
Managing Member
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