UNCONDITIONAL GUARANTY
Exhibit 10.13
This continuing Unconditional Guaranty (“Guaranty”) is entered into as of March
29, 2006, by Gain Holdings, LLC (“Guarantor”), in favor of Silicon Valley Bank
(“SVB”), as agent for the Lenders (“Agent”) and JPMorgan Chase Bank, N.A. (“JPMorgan”)
(SVB and JPMorgan are each a “Lender”, and collectively the “Lenders”).
Recitals
A. Concurrently herewith, Agent, Lenders and Gain Capital Holdings, Inc., Inc., a
Delaware corporation (“Borrower”), are entering into that certain Loan and Security
Agreement dated as of March 29, 2006 (as amended, restated, or otherwise modified from time to time, the
“Loan Agreement”) pursuant to which Lenders have agreed to make certain advances of money and to extend
certain financial accommodations to Borrower (collectively, the “Loans”), subject to the terms and
conditions set forth therein. Capitalized terms used but not otherwise defined herein shall have the
meanings given them in the Loan Agreement.
B. In consideration of the agreement of Lenders to make the Loans to Borrower
under the Loan Agreement, Guarantor is willing to guaranty the full payment and performance
by Borrower of all of its obligations thereunder and under the other Loan Documents, all as further set
forth herein.
C. Guarantor is a wholly-owned subsidiary of Borrower and will obtain substantial
direct and indirect benefit from the Loans made by Lenders to Borrower under the Loan
Agreement.
Now, Therefore, to induce Agent and Lenders to enter into the Loan
Agreement, and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound, Guarantor hereby
represents, warrants, covenants and agrees as follows:
Section 1. Guaranty.
1.1 Unconditional Guaranty of Payment. In consideration of the foregoing,
Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Agent and
Lenders the prompt and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all Obligations. Guarantor agrees that it shall execute such other documents
or agreements and take such action as Agent and any Lender shall reasonably request to effect the
purposes of this Guaranty. The obligations of Guarantor hereunder shall not be limited or otherwise affected
whatsoever by Section 5.10 of the Loan Agreement.
1.2 Separate Obligations. These obligations are independent of
Borrower’s obligations and separate actions may be brought against Guarantor (whether action
is brought against Borrower or whether Borrower is joined in the action).
Section 2. Representations and Warranties.
Guarantor hereby represents and warrants that:
(a) Guarantor (i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware; (ii) is duly
qualified to do business and is in good standing in every jurisdiction where the
nature of its business requires it to be so qualified (except where the failure to so
qualify would not have a material adverse effect on Guarantor’s condition, financial
or otherwise, or on Guarantor’s ability to pay or perform the obligations hereunder);
and (iii) has all requisite power and authority to execute and deliver this Guaranty
and each Loan Document executed and delivered by Guarantor pursuant to the Loan
Agreement or this Guaranty and to perform its obligations thereunder and hereunder.
(b) The execution,
delivery and performance by Guarantor of this Guaranty (i) are
within Guarantor’s powers and have been duly authorized by all necessary action;
(ii) do not contravene Guarantor’s charter documents or any law or any contractual restriction binding
on or affecting Guarantor or by which Guarantor’s property may be affected; (iii) do not require any
authorization or approval or other action by, or any notice to or filing with, any governmental authority or
any other Person under any indenture, mortgage, deed of trust, lease, agreement or other instrument to which
Guarantor is a party or by which Guarantor or any of its property is bound, except such as have been
obtained or made; and (iv) do not result in the imposition or creation of any Lien upon any property of
Guarantor.
(c) This Guaranty is a valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, except as the enforceability thereof may
be subject to or limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws relating to or affecting the rights of creditors generally.
(d) There is no action, suit or proceeding affecting Guarantor pending or
threatened before any court, arbitrator, or governmental authority, domestic or foreign,
which may have a material adverse effect on the ability of Guarantor to perform its obligations under this
Guaranty.
(e) Guarantor’s obligations hereunder are not subject to any offset or
defense against Agent, any Lender, or Borrower of any kind.
(f) The most recent audited and unaudited financial statements of
Guarantor, copies of which have been furnished to Agent, fairly present the financial
position and results of operations for Guarantor for the dates and periods purported
to be covered thereby, all in accordance with GAAP, and there has been no material
adverse change in the financial position or operations of Guarantor since the date of
such financial statements.
(g) To ensure the legality, validity, enforceability or admissability into
evidence of this Guaranty in each of the jurisdictions in which Guarantor is
incorporated or organized and any jurisdiction in which Guarantor conducts business,
it is not necessary that (i) this Guaranty be filed or recorded with any court or
other authority in such jurisdiction, (ii) any other filings, notices, authorizations,
approvals be obtained or other actions taken, or (iii) any stamp or similar tax be
paid on or with respect to this Guaranty, or, if any of the foregoing actions are
necessary, they have been duly taken.
(h) Neither Guarantor nor its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) under applicable
law.
(i) The incurrence of Guarantor’s obligations under this Guaranty will
not cause Guarantor to (i) become insolvent; (ii) be left with unreasonably small
capital for any business or transaction in which Guarantor is presently engaged or
plans to be engaged; or (iii) be unable to pay its debts as such debts mature.
(j) Guarantor covenants, warrants, and represents to Agent and each Lender that
all representations and warranties contained in this Guaranty shall be true at the
time of Guarantor’s execution of this Guaranty, and shall continue to be true so long
as this Guaranty remains in effect. Guarantor expressly agrees that any
misrepresentation or breach of any warranty whatsoever contained in this Guaranty
shall be deemed material.
Section 3. General Waivers. Guarantor waives:
(a) Any right to require Agent and/or Lenders to (i) proceed against Borrower or
any other person; (ii) proceed against or exhaust any security or (iii) pursue any
other remedy. Agent or any Lender may exercise or not exercise any right or remedy it
has against Borrower or any security it holds (including the right to foreclose by
judicial or nonjudicial sale) without affecting Guarantor’s liability hereunder.
(b) Any
defenses from disability or other defense of Borrower or from the cessation of Borrowers liabilities.
(c) Any setoff, defense or counterclaim against Agent or any Lender.
(d) Any defense from the absence, impairment or loss of any right of reimbursement
or subrogation or any other rights against Borrower. Until Borrower’s obligations
to Lenders have been paid, Guarantor has no right of subrogation or reimbursement or other rights against
Borrower.
(e) Any
right to enforce any remedy that Agent or any Lender has against Borrower.
(f) Any rights to participate in any security held by Agent or any Lender.
(g) Any demands for performance, notices of nonperformance or of new or additional
indebtedness incurred by Borrower to Agent or any Lender. Guarantor is responsible
for being and keeping itself informed of Borrower’s financial condition.
(h) The benefit of any act or omission by Agent or any Lender which directly or
indirectly results in or aids the discharge of Borrower from any of the Obligations by
operation of law or otherwise.
Section 4. Real Property Security Waiver. Guarantor acknowledges that, to the
extent Guarantor has or may have rights of subrogation or reimbursement against
Borrower for claims arising out of this Guaranty, those rights may be impaired or
destroyed if Agent or any Lender elects to proceed against any real property security
of Borrower by non-judicial foreclosure. That impairment or destruction could, under
certain judicial cases and based on equitable principles of estoppel, give rise to a
defense by Guarantor against its obligations under this Guaranty. Guarantor waives
that defense and any others arising from Agent’s or any Lender’s election to pursue
non-judicial foreclosure. Guarantor waives the benefits, if any, of any statutory or
common law rule that may permit a subordinating creditor to assert any defenses of a
surety or guarantor, or that may give the subordinating creditor the right to require
a senior creditor to marshal assets, and Guarantor agrees that it shall not assert any
such defenses or rights.
Section 5. Reinstatement. Notwithstanding any provision of the Loan Agreement to
the contrary, the liability of Guarantor hereunder shall be reinstated and revived and
the rights of Agent and Lenders shall continue if and to the extent that for any
reason any payment by or on behalf of Guarantor or Borrower is rescinded or must be
otherwise restored by Agent and Lenders, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not been
paid. The determination as to whether any such payment must be rescinded or restored
shall be made by Agent and Lenders in their sole discretion; provided, however, that
if Agent or any Lender chooses to contest any such matter at the request of Guarantor,
Guarantor agrees to indemnify and hold harmless Agent or such Lender from all costs
and expenses (including, without limitation, reasonable attorneys’ fees) of such
litigation. To the extent any payment is rescinded or restored, Guarantor’s
obligations hereunder shall be revived in full force and effect without reduction or
discharge for that payment.
Section 6. No Waiver; Amendments. No failure on the part of Agent or any Lender to
exercise, no delay in exercising and no course of dealing with respect to, 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. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law. This Guaranty may not be amended or modified except by written agreement
between Guarantor, Agent and each Lender, and no consent or waiver hereunder shall be
valid unless in writing and signed by Agent and each Lender.
Section 7. Compromise and Settlement. No compromise, settlement, release,
renewal, extension, indulgence, change in, waiver or modification of any of the
Obligations or the release or
discharge of Borrower from the performance of any of the Obligations shall
release or discharge Guarantor from this Guaranty or the performance of the
obligations hereunder.
Section 8. Notice. Any notice or other communication herein required or permitted
to be given shall be in writing and may be delivered in person or sent by facsimile
transmission, overnight courier, or by United States mail, registered or certified,
return receipt requested, postage prepaid and addressed as follows:
| If to Guarantor: | Gain Holdings, LLC | |||
| 000 Xxxxx Xxxxx | ||||
| Xxxxxxxxxx, Xxx Xxxxxx 00000 | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Attn: Chief Executive Officer | ||||
| If to Agent: | Silicon Valley Bank | |||
| 000 Xxxxxxx Xxxxxx Xxxxx 00X | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Mr. Xxxxxxx Xxxxxxx | ||||
| Telephone No.: (000) 000-0000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| with copies to: | Xxxxxx & Xxxxxxxxxx LLP | |||
| Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attention: Xxxxx X. Xxxxxxx, Esquire | ||||
| Telephone No.: (000) 000-0000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| If to JPMorgan: | JPMorgan Chase Bank, N.A. | |||
| 000 Xxxxx 00 Xxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxx, Xxx Xxxxxx 00000-0000 | ||||
| Attn: Xxxxxxx Xxxxxx | ||||
| Fax: (000) 000-0000 | ||||
| Telephone: |
or at such other address as may be substituted by notice given as herein provided.
Every notice, demand, request, consent, approval, declaration or other communication
hereunder shall be deemed to have been duly given or served on the date on which
personally delivered or sent by facsimile transmission or three (3) Business Days
after the same shall have been deposited in the United States mail. If sent by
overnight courier service, the date of delivery shall be deemed to be the next
Business Day after deposited with such service.
Section 9. Entire Agreement. This Guaranty constitutes and contains the entire
agreement of the parties and supersedes any and all prior and contemporaneous
agreements, negotiations, correspondence, understandings and communications between
Guarantor, Agent and Lenders, whether written or oral, respecting the subject matter
hereof.
Section 10. Severability. If any provision of this Guaranty is held to be
unenforceable under applicable law for any reason, it shall be adjusted, if possible,
rather than voided in order to achieve the intent of Guarantor, Agent and Lenders to
the extent possible. In any event, all other provisions of this Guaranty shall be
deemed valid and enforceable to the full extent possible under applicable law.
Section 11. Subordination of Indebtedness. Any indebtedness or other obligation
of Borrower now or hereafter held by or owing to Guarantor is hereby subordinated in
time and right of payment to all obligations of Borrower to Agent or any Lender,
except as such indebtedness or other obligation is expressly permitted to be paid
under the Credit Agreement; and such indebtedness of Borrower to Guarantor is
assigned to Agent for the benefit of Lenders as security for this Guaranty, and if
Agent so requests shall be collected, enforced and received by Guarantor in trust for
Agent for the benefit of Lenders and to be paid over to Agent for the benefit of
Lenders on account of the Obligations of Borrower to Agent and Lenders, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any notes now or hereafter evidencing such indebtedness
of Borrower to Guarantor shall be marked with a legend that the same are subject to
this Guaranty and shall be delivered to Agent.
Section 12. Payment of Expenses. Guarantor shall pay, promptly on demand, all
Expenses incurred by Agent and Lenders in defending and/or enforcing this Guaranty.
For purposes hereof, “Expenses” shall mean costs and expenses (including reasonable
fees and disbursements of any law firm or other external counsel and the allocated
cost of internal legal services and all disbursements of internal counsel) for
defending and/or enforcing this Guaranty (including those incurred in connection with
appeals or proceedings by or against any Guarantor under the United States Bankruptcy
Code, or any other bankruptcy or insolvency law, including assignments for the
benefit of creditors, compositions, extensions generally with its creditors, or
proceedings seeking reorganization, arrangement, or other relief).
Section 13. Assignment; Governing Law. This Guaranty shall be binding upon and
inure to the benefit of Guarantor, Agent and each Lender and their respective
successors and assigns, except that Guarantor shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of Agent and
each Lender, which may be granted or withheld in Agent’s and any Lender’s sole
discretion. Any such purported assignment by Guarantor without Agent’s and each
Lender’s written consent shall be void. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New Jersey without regard to
principles thereof regarding conflict of laws.
Section 14. PERSONAL JURISDICTION. GUARANTOR HEREBY IRREVOCABLY AGREES THAT ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OF THE AGREEMENTS,
DOCUMENTS OR INSTRUMENTS DELIVERED IN CONNECTION HEREWITH MAY BE BROUGHT IN THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF NEW JERSEY AS AGENT MAY ELECT (PROVIDED THAT
GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE STATE OF NEW JERSEY), AND, BY EXECUTION AND DELIVERY
HEREOF, GUARANTOR ACCEPTS AND CONSENTS TO, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT SUCH JURISDICTION SHALL BE
EXCLUSIVE, UNLESS WAIVED BY AGENT AND EACH LENDER IN WRITING, WITH RESPECT TO ANY
ACTION OR PROCEEDING BROUGHT BY GUARANTOR AGAINST AGENT OR ANY LENDER. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF AGENT AND LENDERS TO BRING PROCEEDINGS AGAINST GUARANTOR IN
THE COURTS OF ANY OTHER JURISDICTION. GUARANTOR HEREBY WAIVES, TO THE FULL EXTENT
PERMITTED BY LAW, ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT
BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS.
Section 15. WAIVER OF JURY TRIAL. EACH OF AGENT, EACH LENDER, AND GUARANTOR HEREBY
WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS GUARANTY. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN
INDUCED TO
ENTER INTO THIS GUARANTY AND ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.
| GUARANTOR GAIN HOLDINGS, LLC |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
Signature Page to Unconditional Guaranty
