Exhibit 10.9
GUARANTY
THIS GUARANTY, dated as of March 1, 2003 (as amended, supplemented,
restated or otherwise modified from time to time, this "Guaranty"), made by
ATLAS MANAGEMENT PARTNERS, L.L.C., a Utah limited liability company
("Guarantor") (such capitalized term, and all other capitalized terms used in
these recitals without definition, to have the meanings assigned to such terms
in Article I hereof), in favor of XXXXXXXX X. XXXXXXX (the "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to the Convertible Note And Security Agreement dated as
of the date hereof (as amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement"), between MACC Private Equities Inc.,
a Delaware corporation (the "Borrower") and the Secured Party, the Secured Party
has extended a commitment to extend credit to the Borrower subject to the terms
and conditions set forth in the Credit Agreement (the "Commitment"); and
WHEREAS, the parties expect that on Xxxxx 0, 0000, Xxxxxxxxx will become
the investment advisor to the Borrower;
WHEREAS, as a condition precedent to the entering the Credit Agreement,
Guarantor is required to execute and deliver this Guaranty;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in order to induce the Secured
Party to enter into the Credit Agreement, Guarantor hereby agrees with the
Secured Party as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
"Borrower" has the meaning assigned to that term in the first recital
hereto.
"Credit Agreement" has the meaning assigned to that term in the first
recital hereto.
"Guaranteed Obligations" has the meaning assigned to that term in Section
2.1.
"Guarantor" has the meaning assigned to that term in the preamble hereto.
"Guaranty" has the meaning assigned to that term in the preamble hereto.
"Secured Party" has the meaning assigned to that term in the preamble
hereto.
Section 1.2 Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II.
GUARANTY
Section 2.1 Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise (including, without limitation, all amounts which
would have become due but for the operation of the automatic stay under Section
362(a) of the Federal Bankruptcy Code, 11 U.S.C. 362(a)), of the following
(collectively, the "Guaranteed Obligations"),
(a) all obligations of the Borrower to the Secured Party now or
hereafter existing under the Credit Agreement, whether for principal,
interest, fees, expenses or otherwise; and
(b) any and all costs and expenses (including, without limitation,
reasonable fees and expenses of legal counsel) incurred by the Secured
Party in enforcing any of its rights under this Guaranty.
This Guaranty constitutes a guaranty of payment when due and not merely of
collection, and Guarantor specifically agrees that it shall not be necessary or
required that the Secured Party exercise any right, assert any claim or demand
or enforce any remedy whatsoever against the Borrower or any Collateral before
or as a condition to the obligations of Guarantor hereunder.
Section 2.2 Guaranty Absolute. This Guaranty is a continuing, absolute,
unconditional and irrevocable guarantee of payment and shall remain in full
force and effect until all the Guaranteed Obligations have been indefeasibly
paid in full in cash and the Commitment shall have permanently terminated. The
liability of Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement or any other agreement or instrument relating to any thereof;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any compromise,
renewal, extension, acceleration or release with respect thereto, or any
other amendment or waiver of or any consent to departure from the Credit
Agreement, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Borrower or otherwise;
(c) any taking, addition, exchange, release, impairment or
non-perfection of any collateral, or any taking, release or amendment or
waiver of or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;
(d) the failure of the Secured Party
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(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Person (including, without
limitation, any other guarantor) under the provisions of the Credit
Agreement or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
of, or collateral securing, any of the Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of the Credit Agreement;
(f) any defense, claim, set-off, counterclaim or other right which may
at any time be available to or be asserted by the Borrower or Guarantor
against the Secured Party or any other person, whether in connection with
this Guaranty, the transactions contemplated in the Credit Agreement, or
any unrelated transaction;
(g) any reduction, limitation, impairment or termination of the
Guaranteed Obligations for any reason, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and shall
not be subject to (and Guarantor hereby waives any right to or claim of)
any defense or setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise or unenforceability of, or any other event or occurrence
affecting, the Guaranteed Obligations or otherwise;
(h) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other assets of the Borrower or any of their subsidiaries;
(i) any change, restructuring or termination of the corporate
structure or existence of the Borrower; or
(j) any other circumstance that might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower or
Guarantor.
Section 2.3 Reinstatement, etc. Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Guaranteed Obligations is
rescinded or must otherwise be returned or restored by the Secured Party upon
the insolvency, bankruptcy or reorganization of the Borrower, all as though such
payment had not been made.
Section 2.4 Waiver. Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Secured Party
protect, secure, perfect or insure any lien or any property subject thereto or
exhaust any right or take any action against the Borrower, or any other Person
(including, without limitation, any other guarantor) or any collateral securing
the Guaranteed Obligations.
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Section 2.5 Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall:
(a) be binding upon Guarantor and its successors, transferees and
assigns; and
(b) inure to the benefit of and be enforceable by the Secured Party.
No Guarantor may transfer or assign all or any portion of its rights or
obligations under this Guaranty without the prior written consent of the Secured
Party.
ARTICLE III.
REPRESENTATIONS AND COVENANTS
Section 3.1 Representations and Warranties. Guarantor hereby represents and
warrants to the Secured Party as follows:
(a) Guarantor is a limited liability company, duly organized, validly
existing and in good standing under the laws of the state of its
organization.
(b) The execution, delivery and performance by Guarantor of this
Guaranty (i) are within such Guarantor's limited liability company powers,
(ii) have been duly authorized by all necessary action, and (iii) do not
and will not (A) require any consent or approval of the members of
Guarantor, (B) violate any provision of the organizational documents of
such Guarantor or of law, (C) violate any legal restriction binding on or
affecting such Guarantor, (D) result in a breach of, or constitute a
default under, any indenture or loan or credit agreement or any other
agreement, lease or instrument to which such Guarantor is a party or by
which it or its properties may be bound or affected, or (E) result in or
require the creation of any lien upon or with respect to any of its
properties. This Guaranty has been duly executed and delivered by such
Guarantor.
Section 3.2 This Guaranty is the legal, valid and binding obligation of
Guarantor enforceable against such Guarantor in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
ARTICLE IV.
MISCELLANEOUS
Section 4.1 Binding on Successors, Transferees and Assigns. This Guaranty
shall be binding upon Guarantor and its successors, permitted transferees and
permitted assigns and shall inure to the benefit of and be enforceable by the
Secured Party and its successors, transferees and assigns.
Section 4.2 Amendments, Etc. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by the Secured
Party and, in the case of any such
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amendment, Guarantor, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 4.3 Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, facsimile,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered, if to Guarantor, at the following addresses:
Atlas Management Partners, L.L.C.
Xxx Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx XX 00000
and if to the Secured Party, at its addresses specified in the Credit Agreement;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall be deemed received, (a) if personally delivered, upon delivery, (b) if
sent by first class mail, on the third Business Day following deposit into the
mails and (c) if sent by telecopier, upon acknowledgment of receipt thereof by
the recipient.
Section 4.4 No Waiver; Remedies. No failure on the part of the Secured
Party 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. The Secured Party shall have all remedies available at law or
equity, including, without limitation, the remedy of specific performance for
any breach of any provision hereof. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law or equity.
Section 4.5 Severability. Any provision of this Guaranty that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Guaranty or affecting the validity
or enforceability of such provisions in any other jurisdiction.
Section 4.6 Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute but one and the same agreement.
Section 4.7 Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
[Signature page to follow.]
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
above written.
ATLAS MANAGEMENT PARTNERS, L.L.C.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Manager
Acknowledged and Accepted:
XXXXXXXX X. XXXXXXX
/s/ Xxxxxxxx X. Xxxxxxx
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