EXHIBIT 10.89
GUARANTY
(Subsidiary)
WHEREAS, FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas corporation,
("BORROWER") has entered into that certain Credit Agreement dated as of December
22, 2000, among Borrower, the lenders party thereto (individually a "LENDER" and
collectively, "LENDERS"), BANK OF AMERICA, N.A., as administrative agent for
itself and the other Lenders ("ADMINISTRATIVE AGENT") and BANC OF AMERICA
SECURITIES LLC, as lead arranger and book manager (such Credit Agreement, as it
may hereafter be amended or otherwise modified from time to time, being
hereinafter referred to as the "CREDIT AGREEMENT" and capitalized terms not
otherwise defined herein shall have the same meaning as set forth in the Credit
Agreement);
WHEREAS, the execution of this Guaranty is required by the Credit
Agreement as a condition to making extensions of credit thereunder from and
after the Closing Date;
WHEREAS, each Guarantor has determined that (i) it will directly and
indirectly benefit from the availability of financing to the Borrower under the
Credit Agreement and from the other transactions evidenced by and contemplated
in the Loan Documents, (ii) it will benefit, directly and indirectly, from
executing and delivering this Guaranty Agreement, (iii) it is in such
Guarantor's best interest, and within its corporate purpose, to execute and
deliver and, if called upon to do so, to perform its obligations under this
Guaranty Agreement, and (iv) execution and delivery of this Guaranty Agreement
and the other Loan Documents to which such Guarantor is a party is necessary or
convenient to the conduct, promotion, and attainment of the business of such
Guarantor.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, each of the undersigned Subsidiaries and any
Subsidiary hereafter added as a "Guarantor" hereto pursuant to a Joinder
Agreement (individually a "GUARANTOR" and collectively the "GUARANTORS"), hereby
irrevocably, unconditionally and jointly and severally guarantees to the
Administrative Agent and Lenders the full and prompt payment and performance of
the Guaranteed Indebtedness (hereinafter defined) upon the following terms:
1. The term "GUARANTEED INDEBTEDNESS", as used herein means all of the
"Obligations", as defined in the Credit Agreement and shall include any and all
post-petition interest and expenses (including reasonable attorneys' fees)
whether or not allowed under any bankruptcy, insolvency, or other similar law;
PROVIDED that, notwithstanding anything to the contrary contained in this
Guaranty, the Guaranteed Indebtedness shall be limited, with respect to each
Guarantor to an aggregate amount equal to the greatest amount that would not
render such Guarantor's indebtedness, liabilities or obligations hereunder
subject to avoidance under Sections 544, 548 or 550 of the United States
Bankruptcy Code or subject to being set aside or annulled under any applicable
state law relating to fraud on creditors; PROVIDED, FURTHER, that, for purposes
of the immediately preceding clauses, it shall be presumed that the Guaranteed
Indebtedness for each Guarantor hereunder does not equal or exceed any aggregate
amount which would render such Guarantor's indebtedness, liabilities or
obligations hereunder subject to being so avoided, set aside or annulled, and
the burden of proof to the contrary shall be on the party asserting to the
contrary. Subject to but without limiting the generality of the foregoing
sentence, the provisions of this Guaranty are severable and, in any legally
GUARANTY (Subsidiary) - Page 1
binding action or proceeding involving any state corporate law or any
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights and general principles of equity, if the
indebtedness, liabilities or obligations of any Guarantor hereunder would
otherwise be held or determined to be void, invalid or unenforceable on account
of the amount of its indebtedness, liabilities or obligations hereunder, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such indebtedness, liabilities or obligations shall, for purposes of
determining such Guarantor's obligations under this Guaranty, without any
further action by such Guarantor or any other Person, be automatically limited
and reduced to the greatest amount which is valid and enforceable as determined
in such action or proceeding.
2. This instrument shall be an absolute, continuing, irrevocable and
unconditional guaranty of payment and not a guaranty of collection, and each
Guarantor shall remain liable on its obligations hereunder until the payment and
performance in full of the Guaranteed Indebtedness. No set-off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any defense of any
kind or nature which Borrower may have against Administrative Agent, any Lender
or any other party, or which any Guarantor may have against Borrower,
Administrative Agent, any Lender or any other party, shall, to the extent
permitted by applicable law, be available to, or asserted by, any Guarantor
against Administrative Agent, any Lender or any subsequent holder of the
Guaranteed Indebtedness or any part thereof or against payment of the Guaranteed
Indebtedness or any part thereof.
3. If a Guarantor becomes liable for any indebtedness owing by Borrower to
Administrative Agent or any Lender by endorsement or otherwise, other than under
this Guaranty, such liability shall not be in any manner impaired or affected
hereby, and the rights of Administrative Agent and Lenders hereunder shall be
cumulative of any and all other rights that Administrative Agent and Lenders may
ever have against such Guarantor. The exercise by Administrative Agent and
Lenders of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
4. Upon the occurrence of an Event of Default by Borrower in payment or
performance of the Guaranteed Indebtedness, or any part thereof, when such
Guaranteed Indebtedness becomes due, whether by its terms, by acceleration, or
otherwise, the Guarantors shall, jointly and severally, promptly pay the amount
due thereon to Administrative Agent and Lenders without notice or demand in
lawful currency of the United States of America and it shall not be necessary
for Administrative Agent or any Lender, in order to enforce such payment by any
Guarantor, first to institute suit or exhaust its remedies against Borrower or
others liable on such Guaranteed Indebtedness, or to enforce any rights against
any collateral which shall ever have been given to secure such Guaranteed
Indebtedness notwithstanding any applicable law to the contrary. In the event
such payment is made by a Guarantor, then such Guarantor shall be subrogated to
the rights then held by Administrative Agent and any Lender with respect to the
Guaranteed Indebtedness to the extent to which the Guaranteed Indebtedness was
discharged by such Guarantor and, in addition, upon payment by such Guarantor of
any sums to Administrative Agent and any Lender hereunder, all rights of such
Guarantor against Borrower, any other guarantor or any Collateral arising as a
result therefrom by way of right of subrogation, reimbursement, or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full of the Guaranteed
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Indebtedness and no such right or remedy of subrogation, reimbursement or
otherwise shall be exercised or otherwise entered unless and until the
Guaranteed Indebtedness has been indefeasibly paid in full.
5. If acceleration of the time for payment of any amount payable by
Borrower under the Guaranteed Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower, all such amounts otherwise subject to
acceleration under the terms of the Guaranteed Indebtedness shall, to the extent
permitted by applicable law, nonetheless be payable by the Guarantors hereunder
forthwith on demand by Administrative Agent or any Lender.
6. Each Guarantor hereby agrees that its obligations under this Guaranty
shall, to the extent permitted by applicable law, not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
occurrences or events, whether or not with notice to or the consent of any
Guarantor: (a) the taking or accepting of collateral as security for any or all
of the Guaranteed Indebtedness or the release, surrender, exchange, or
subordination of any collateral now or hereafter securing any or all of the
Guaranteed Indebtedness; (b) any partial release of the liability of any
Guarantor hereunder, or the full or partial release of any other guarantor from
liability for any or all of the Guaranteed Indebtedness; (c) any disability of
Borrower, or the dissolution, insolvency, or bankruptcy of Borrower, any
Guarantor, or any other party at any time liable for the payment of any or all
of the Guaranteed Indebtedness; (d) any renewal, extension, modification,
waiver, amendment, or rearrangement of any or all of the Guaranteed Indebtedness
or any instrument, document, or agreement evidencing, securing, or otherwise
relating to any or all of the Guaranteed Indebtedness; (e) any adjustment,
indulgence, forbearance, waiver, or compromise that may be granted or given by
Administrative Agent or any Lender to Borrower, any Guarantor, or any other
party ever liable for any or all of the Guaranteed Indebtedness; (f) any
neglect, delay, omission, failure, or refusal of Administrative Agent or any
Lender to take or prosecute any action for the collection of any of the
Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any instrument, document, or agreement evidencing, securing, or
otherwise relating to any or all of the Guaranteed Indebtedness; (g) the
unenforceability or invalidity of any or all of the Guaranteed Indebtedness or
of any instrument, document, or agreement evidencing, securing, or otherwise
relating to any or all of the Guaranteed Indebtedness; (h) any payment by
Borrower or any other party to Administrative Agent or any Lender is held to
constitute a preference under applicable bankruptcy or insolvency law or if for
any other reason Administrative Agent or any Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Administrative Agent or any Lender to sell any
collateral securing any or all of the Guaranteed Indebtedness in a commercially
reasonable manner or as otherwise required by law; (m) any change in the
corporate existence, structure, or ownership of Borrower; or (n) any other
circumstance which might otherwise constitute a defense available to, or
discharge of, Borrower or any Guarantor.
7. Each Guarantor represents and warrants to Administrative Agent
and Lenders as follows:
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(a) All representations and warranties in the Credit Agreement
relating to it are true and correct in all material respects as of the date
hereof and on each date the representations and warranties hereunder are
restated pursuant to any of the Loan Documents with the same force and effect as
if such representations and warranties had been made on and as of such date
except to the extent that such representations and warranties relate
specifically to another date or to the extent that a fact, event or circumstance
has occurred that makes such representation or warranty untrue but which is not
prohibited to occur or exist (or which does not cause an Event of Default) under
the Loan Documents.
(b) The value of the consideration received and to be received by it
as a result of Borrower, Administrative Agent and Lenders entering into the
Credit Agreement and its executing and delivering this Guaranty and the other
Loan Documents to which it is a party is reasonably worth at least as much as
its liability and obligation hereunder and thereunder, and such liability and
obligation and the Credit Agreement have benefitted and may reasonably be
expected to benefit it directly or indirectly.
(c) It has, independently and without reliance upon Administrative
Agent or any Lender and based upon such documents and information as it has
deemed appropriate, made its own analysis and decision to enter into the Loan
Documents to which it is a party.
(d) It has adequate means to obtain from Borrower on a continuing
basis information concerning the financial condition and assets of Borrower and
it is not relying upon Administrative Agent or the Lenders to provide (and
neither the Administrative Agent nor any Lender shall have any duty to provide)
any such information to it either now or in the future.
8. Each Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding or any Lender has any commitment
under the Credit Agreement, it will comply with all covenants set forth in the
Credit Agreement specifically applicable to it, the terms of which are
incorporated herein by reference.
9. When an Event of Default exists, Administrative Agent and Lenders shall
have the right to set-off and apply against this Guaranty or the Guaranteed
Indebtedness or both, at any time and without notice to any Guarantor, any and
all deposits (general or special, time or demand, provisional or final, but
excluding any account established by a Guarantor as a fiduciary for another
party) or other sums at any time credited by or owing from Administrative Agent
and Lenders to any Guarantor whether or not the Guaranteed Indebtedness is then
due and irrespective of whether or not Administrative Agent or any Lender shall
have made any demand under this Guaranty. Each Lender agrees promptly to notify
the Borrower (with a copy to the Administrative Agent) after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights and remedies of
Administrative Agent and the Lenders hereunder are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which
Administrative Agent or any Lender may have.
GUARANTY (Subsidiary) - Page 4
10. (a) Each Guarantor hereby agrees that the Subordinated Indebtedness
(as defined below) shall be subordinate and junior in right of payment to the
prior indefeasible payment in full of all Guaranteed Indebtedness as herein
provided. The Subordinated Indebtedness shall not be payable, and no payment of
principal, interest or other amounts on account thereof, and no property or
guarantee of any nature to secure or pay the Subordinated Indebtedness or any
part thereof shall be made or given, directly or indirectly by or on behalf of
any Debtor (hereafter defined) or received, accepted, retained or applied by any
Guarantor unless and until the Guaranteed Indebtedness shall have been
indefeasibly paid in full in cash; EXCEPT THAT prior to occurrence of an Event
of Default, a Guarantor shall have the right to receive payments on the
Subordinated Indebtedness made in the ordinary course of business unless, and
except to the extent that, the payment or receipt of such payments is prohibited
or otherwise restricted by the Credit Agreement or another Loan Document other
than this Guaranty. After the occurrence and during the continuance of an Event
of Default, no payments of principal or interest may be made or given, directly
or indirectly, by or on behalf of any Debtor or received, accepted, retained or
applied by any Guarantor unless and until the Guaranteed Indebtedness shall have
been indefeasibly paid in full in cash. If any sums shall be paid to a Guarantor
by any Debtor or any other Person on account of the Subordinated Indebtedness
when such payment is not permitted hereunder, such sums shall be held in trust
by such Guarantor for the benefit of Administrative Agent and the Lenders and
shall forthwith be paid to Administrative Agent without affecting the liability
of any Guarantor under this Guaranty and may be applied by Administrative Agent
against the Guaranteed Indebtedness in accordance with the Credit Agreement.
Upon the request of Administrative Agent, a Guarantor shall execute, deliver,
and endorse to Administrative Agent such documentation as Administrative Agent
may request to perfect, preserve, and enforce its rights hereunder. For purposes
of this Guaranty and with respect to a Guarantor, the term "SUBORDINATED
INDEBTEDNESS" means all indebtedness, liabilities, and obligations of Borrower
or any other Loan Party other than such Guarantor (Borrower and such Loan
Parties herein the "DEBTORS") to such Guarantor, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or
are direct, indirect, contingent, primary, secondary, several, joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contract, open account, or
otherwise, and irrespective of the Person or Persons in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by such Guarantor.
(b) Each Guarantor agrees that any and all Liens (including any
judgment liens), upon any Debtor's assets securing payment of any Subordinated
Indebtedness shall be and remain inferior and subordinate to any and all Liens
upon any Debtor's assets securing payment of the Guaranteed Indebtedness or any
part thereof, regardless of whether such Liens in favor of a Guarantor,
Administrative Agent or any Lender presently exist or are hereafter created or
attached. Without the prior written consent of Administrative Agent, no
Guarantor shall (i) file suit against any Debtor or exercise or enforce any
other creditor's right it may have against any Debtor, or (ii) foreclose,
repossess, sequester, or otherwise take steps or institute any action or
proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor's relief or insolvency proceeding) to enforce any obligations of any
Debtor to such Guarantor or any Liens held by such Guarantor on assets of any
Debtor.
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(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving any
Debtor as debtor, Administrative Agent shall have the right to prove and vote
any claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions, and
payments made in respect of the Subordinated Indebtedness until the Guaranteed
Indebtedness has been indefeasibly paid in full in cash. Administrative Agent
may apply any such dividends, distributions, and payments against the Guaranteed
Indebtedness in accordance with the Credit Agreement.
(d) Each Guarantor agrees that all promissory notes, accounts
receivable, ledgers, records, or any other evidence of Subordinated Indebtedness
shall contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under the terms of this Guaranty.
11. Except for modifications made pursuant to the execution and delivery
of a Joinder Agreement (which only needs to be signed by each Subsidiary party
thereto), no amendment or waiver of any provision of this Guaranty or consent to
any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by Administrative Agent and Required
Lenders except as otherwise provided in the Credit Agreement. To the extent
permitted by applicable law, no failure on the part of Administrative Agent or
any Lender to exercise, and no delay in exercising, any right, power, or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power, or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power, or
privilege. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
12. To the extent permitted by applicable law, any acknowledgment or new
promise, whether by payment of principal or interest or otherwise and whether by
Borrower or others (including any Guarantor), with respect to any of the
Guaranteed Indebtedness shall, if the statute of limitations in favor of a
Guarantor against Administrative Agent or any Lender shall have commenced to
run, toll the running of such statute of limitations and, if the period of such
statute of limitations shall have expired, prevent the operation of such statute
of limitations.
13. This Guaranty is for the benefit of Administrative Agent and the
Lenders and their successors and assigns, and in the event of an assignment of
the Guaranteed Indebtedness, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty is binding not only on each
Guarantor, but on each Guarantor's successors and assigns.
14. Each Guarantor recognizes that Administrative Agent and the Lenders
are relying upon this Guaranty and the undertakings of each Guarantor hereunder
and under the other Loan Documents to which each is a party in making extensions
of credit to Borrower under the Credit Agreement and further recognizes that the
execution and delivery of this Guaranty and the other Loan Documents to which
each Guarantor is a party is a material inducement to Administrative Agent and
the Lenders in entering into the Credit Agreement and continuing to extend
credit thereunder. Each Guarantor hereby acknowledges that there are no
conditions to the full effectiveness of this Guaranty or any other Loan Document
to which it is a party.
GUARANTY (Subsidiary) - Page 6
15. Any notice or demand to any Guarantor under or in connection with this
Guaranty or any other Loan Document to which it is a party shall be deemed
effective if given to the Guarantor, at the address of the Borrower and/or in
care of Borrower in accordance with the notice provisions in the Credit
Agreement.
16. The Guarantors shall, jointly and severally, pay on demand all
reasonable attorneys' fees and all other reasonable costs and expenses incurred
by Administrative Agent and Lenders in connection with the administration,
enforcement, or collection of this Guaranty.
17. Each Guarantor hereby waives promptness, diligence, notice of any
default under the Guaranteed Indebtedness, demand of payment, notice of
acceptance of this Guaranty, presentment, notice of protest, notice of dishonor,
notice of the incurring by Borrower of additional indebtedness, and all other
notices and demands with respect to the Guaranteed Indebtedness and this
Guaranty.
18. Each Guarantor agrees that Administrative Agent and the Lenders may
exercise any and all rights granted to any of them under the Credit Agreement
and the other Loan Documents without affecting the validity or enforceability of
this Guaranty.
19. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF EACH GUARANTOR,
ADMINISTRATIVE AGENT AND LENDERS WITH RESPECT TO EACH GUARANTOR'S GUARANTY OF
THE GUARANTEED INDEBTEDNESS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY EACH
GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS AS A FINAL AND COMPLETE EXPRESSION
OF THE TERMS OF THIS GUARANTY, AND NO COURSE OF DEALING AMONG ANY GUARANTOR,
ADMINISTRATIVE AGENT AND THE LENDERS, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE
ARE NO ORAL AGREEMENTS AMONG ANY GUARANTOR, ADMINISTRATIVE AGENT AND THE
LENDERS.
20. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
GUARANTY (Subsidiary) - Page 7
EXECUTED as of the 22nd day of December, 2000.
GUARANTORS:
FARRAGUT FINANCIAL CORPORATION,
a Delaware corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
FIRST INVESTORS SERVICING
CORPORATION,
a Delaware corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
GUARANTY (Subsidiary) - Page 8
