EXHIBIT 99.6
SURETY AGREEMENT
SURETY AGREEMENT (this "AGREEMENT"), dated as of November 18, 2005, by
and among: OPTION TECHNOLOGIES INTERACTIVE LLC ("OTI" or the "SURETY"), a
Florida limited liability company; FLEXNER XXXXXXXX & ASSOCIATES ("FWA"), a
Nevada corporation; and MEETINGNET INTERACTIVE, INC. ("MEETINGNET"), a Florida
corporation. FWA and MeetingNet are referred to herein collectively as the
"BENEFICIARIES" and each as a "BENEFICIARY," and the Surety and the
Beneficiaries are referred to herein collectively as the "PARTIES" and each as a
"PARTY."
WHEREAS, National Auto Credit, Inc. ("NAC") and the Beneficiaries
entered into a certain Membership Interest Purchase Agreement (the "PURCHASE
AGREEMENT"), dated as of even date herewith, pursuant to which the parties
thereto agreed, inter alia, upon the terms and subject to the conditions set
forth therein, that NAC would purchase from the Beneficiaries all of the units
and membership interests in the Surety (the "PURCHASE");
WHEREAS, as provided in and contemplated by the Purchase Agreement,
NAC, in conjunction with the Purchase, issued to the Beneficiaries the
Promissory Notes (as defined in the Purchase Agreement);
WHEREAS, as a condition to the consummation of the Purchase, the
Beneficiaries have required that, as provided for herein, the Surety act as a
surety with respect to NAC's payment of the Promissory Notes; and
WHEREAS, in order to fulfill such condition, the Surety has agreed, as
provided for herein, to act as a surety with respect to NAC's obligations to pay
the Promissory Notes;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. When used in this Agreement, the following terms shall
have the following respective meanings:
(A) "AGREEMENT" means this Surety Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to this Surety Agreement as the same may be in effect
at the time such reference becomes operative.
(B) "DEFAULT" means the occurrence and continuance of an Event of
Default under and pursuant to one or both of the Promissory Notes.
(C) "TERMINATION DATE" means the date upon which both of the
Promissory Notes have been fully paid and discharged (including, if applicable,
by conversion).
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Other capitalized terms used herein and defined in the Purchase Agreement are
used herewith with the respective meanings ascribed thereto in the Purchase
Agreement, unless otherwise defined herein or the context otherwise requires.
2. REPRESENTATIONS AND WARRANTIES OF THE SURETY. The Surety represents
and warrants to the Beneficiaries as follows:
(A) subject to the truth and accuracy of the representations and
warranties of the Beneficiaries, and the full performance of their obligations,
under the Purchase Agreement, the Surety has the requisite power and authority
to enter into this Agreement and to carry out its obligations hereunder, and the
Surety is duly authorized and empowered to enter into and perform this
Agreement;
(B) subject to the truth and accuracy of the representations and
warranties of the Beneficiaries, and the full performance of their obligations,
under the Purchase Agreement, all limited liability company and other actions
necessary or appropriate on the part of the Surety to authorize it to enter into
and perform this Agreement have been taken, and all consents, approvals and
permissions necessary or appropriate to authorize the Surety to enter into and
perform this Agreement have been obtained and remain in full force and effect;
(C) subject to the truth and accuracy of the representations and
warranties of the Beneficiaries, and the full performance of their obligations,
under the Purchase Agreement, this Agreement has been duly executed and
delivered by the Surety and constitutes a valid and binding obligation of the
Surety, enforceable against the Surety in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought,
regardless of whether such relief is considered at law or in equity;
(D) subject to the truth and accuracy of the representations and
warranties of the Beneficiaries, and the full performance of their obligations,
under the Purchase Agreement, nothing exists to impair the effectiveness of the
obligations of the Surety to the Beneficiaries hereunder or the immediate taking
effect of this Agreement as the sole agreement between the Surety and the
Beneficiaries with respect to the matters set forth herein;
(E) although words of guaranty may be used in this Agreement, it is
understood by the Surety that this Agreement is intended to be and is a contract
of surety, by which the Surety agrees to be bound; and
(F) the Surety has been presented with and reviewed a copy of the
Promissory Notes and the Surety is familiar with and understands the terms of
the Promissory Notes.
3. REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARIES. Each
Beneficiary represents and warrants to the Surety as follows:
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(A) such Beneficiary has the requisite power and authority to enter
into this Agreement and to carry out its obligations hereunder, and such
Beneficiary is duly authorized and empowered to enter into and perform this
Agreement;
(B) all actions necessary or appropriate on the part of such
Beneficiary to authorize it to enter into and perform this Agreement have been
taken, and all consents, approvals and permissions necessary or appropriate to
authorize such Beneficiary to enter into and perform this Agreement have been
obtained and remain in full force and effect; and
(C) this Agreement has been duly executed and delivered by such
Beneficiary and constitutes a valid and binding obligation of such Beneficiary,
enforceable against such Beneficiary in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought,
regardless of whether such relief is considered at law or in equity.
4. SURETY. The Surety hereby irrevocably and unconditionally
guarantees to the Beneficiaries, upon and during a Default, the full and timely
performance by NAC of all of its duties, liabilities and obligations under and
pursuant to the Promissory Notes. Such obligation is an obligation of
performance and not merely of collection, and the Beneficiaries shall be
entitled to proceed against the Surety without first (or simultaneously)
commencing any action, or otherwise proceeding, against NAC or otherwise seeking
to enforce the Promissory Notes.
5. MODIFICATION OF PROMISSORY NOTES. The Surety consents and agrees
that the Beneficiaries may at any time, or from time to time, in their sole and
absolute discretion and without wholly or partially affecting, impairing or
discharging the obligation of the Surety under this Agreement, (a) renew, extend
or change the time of payment, and/or the manner, place or terms of payment of
all or any part of the Promissory Notes or otherwise amend, supplement or modify
the Promissory Notes, and (b) exchange, release, substitute and/or surrender all
or any of the collateral, or any part(s) thereof, by whomsoever deposited, that
is now or may hereafter be held by the Beneficiaries as security for payment of
the Promissory Notes (or either of them), and (c) compromise, release,
substitute, exercise, enforce or fail or refuse to exercise any claims, rights
or remedies of any kind that the Beneficiaries may have at any time against NAC,
whether under the Promissory Notes or otherwise; all in such manner and upon
such terms as the Beneficiaries may deem proper, and without notice to or
further assent from the Surety, it being hereby agreed that the Surety shall be
and remain bound by this Agreement, irrespective of the existence, value or
condition of any of such collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, substitution, renewal or
extension, and notwithstanding also that the obligations of NAC under the
Promissory Notes may, at any time exceed the aggregate principal amounts of
thereof.
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6. MISCELLANEOUS.
(A) Termination. All duties and obligations of the Surety hereunder,
and all rights, remedies and benefits granted to the Beneficiaries hereunder,
shall terminate on the Termination Date, and as soon as reasonably practical
following the Termination Date the Beneficiaries shall take all such actions as
the Surety may reasonably request to evidence and confirm the termination of
such duties, obligations, rights, remedies and benefits.
(B) Waiver. Except as otherwise expressly provided herein or in the
Promissory Notes, the Surety hereby waives (to the fullest extent permitted by
law) notice of nonpayment, demand, presentment, protest or notice of protest of
or with respect to the Promissory Notes, and all other notices, consents to any
renewals or extensions of time of payment thereof. No delay or omission of any
Party in exercising or enforcing any of its rights, powers, privileges,
remedies, immunities or discretions hereunder shall constitute a waiver thereof;
and no waiver by any Party of any default by any other Party shall operate as a
waiver of any other default hereunder. No term or provision hereof shall be
waived, altered or modified except with the prior written consent of the Party
to be charged therewith.
(C) Expenses. Except as otherwise provided herein, each Party will
bear all of its own expenses in connection with the preparation and negotiation
of this Agreement and the consummation and performance of its obligations
thereunder.
(D) Notices. All notices, demands, requests, consents, approvals or
other communications required or permitted to be given hereunder or pursuant
hereto or that are given with respect to this Agreement to any Party shall be in
writing and shall be given as provided in Section 11.2 of the Purchase
Agreement.
(E) Entire Agreement. This Agreement is intended by the Parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the Parties, in
respect of the subject matter contained herein, constitutes the entire agreement
of the Parties with respect to the subject matter hereof and supersedes, and
merges herein, all prior and contemporaneous negotiations, discussions,
representations, understandings and agreements between the Parties, whether oral
or written, with respect such subject matter. No representation, warranty,
restriction, promise, undertaking or other agreement with respect to such
subject matter has been made or given by any Party other than those set forth in
this Agreement.
(F) Amendment and Waiver. This Agreement may be amended, modified or
supplemented only to the extent expressly set forth in writing that is signed by
the Party to be charged therewith. No waiver of any term, condition or provision
of this Agreement or of any breach or violation of this Agreement or any
provision hereof shall be effective except to the extent expressly set forth in
writing that is signed by the Party to be charged therewith. Without limiting
the generality of the foregoing, no failure to object or otherwise act, and no
conduct (including, without limitation, any failure or delay in enforcing this
Agreement or any provision hereof or any acceptance or retention of payment) or
course of conduct or dealing, by any Party shall be deemed (a) to constitute a
waiver by such Party of the breach or violation of this
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Agreement or of any provision hereof by any other Party or (b) to have caused or
reflected any amendment or other modification of this Agreement or of any term
or provision hereof. Any waiver may be made in advance or after the right waived
has arisen or the breach or default waived has occurred, and any waiver may be
conditional. No waiver of any breach or violation of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
or violation thereof nor of any other agreement or provision herein contained.
No waiver or extension of time for performance of any obligation or act shall be
deemed a waiver or extension of the time for performance of any other obligation
or act.
(G) Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations hereunder may not be assigned or delegated by any
Party without the prior written consent of the other Parties; provided, however,
that to the extent any Promissory Note is assigned or transferred by any
Beneficiary as permitted in such Promissory Note, the assignee or transferee
thereof shall succeed to the benefits of such Beneficiary hereunder with respect
to the Promissory Note so assigned or transferred. Except as provided in the
immediately preceding sentence, any purported assignment or delegation of
rights, duties or obligations hereunder made by any Party without the prior
written consent of the other Parties shall be null and void and of no effect.
This Agreement and the provisions hereof shall be binding upon and enforceable
against each of the Parties and its successors and assigns and shall inure to
the benefit of and be enforceable by each of the Parties and its successors and
permitted assigns. Except as expressly provided for in this Agreement, this
Agreement is not intended to confer any rights or benefits on any Persons other
than the Parties.
(H) Severability. This Agreement and the terms and provisions hereof
shall be deemed severable, and the invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of this
Agreement or of any other term or provision hereof. In the event any term or
provision hereof shall be determined to be invalid or unenforceable as applied
to any situation or circumstance or in any jurisdiction, such invalidity or
unenforceability shall not apply or extend to any other situation or
circumstance or in any other jurisdiction or affect the validity or
enforceability of any other term or provision. It is the Parties' intent that
this Agreement and each term and provision hereof be enforceable in accordance
with its terms and to the fullest extent permitted by law. Accordingly, to the
extent any term or provision of this Agreement shall be determined or deemed to
be invalid or unenforceable, such provision shall be deemed amended or modified
to the minimum extent necessary to make such provision, as so amended or
modified, valid and enforceable.
(I) Further Assurances. Each Party, upon the reasonable request of any
other Party, shall, as promptly as reasonably possible, do and perform all such
further acts and execute, acknowledge and deliver all such further instruments
and documents as may be necessary or desirable to carry out, evidence and
reflect the transactions contemplated hereby or otherwise carry out and perform
the provisions, and purpose and intent, of this Agreement.
(J) Titles and Headings; Rules of Interpretation. Titles, captions and
headings of the sections, articles and other subdivisions of this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement. References to Sections and
subsections (or other parts or subdivisions) refer to such Sections and
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subsections (or other parts or subdivisions) of this Agreement unless otherwise
stated. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby" and
"hereunder," and words of like import, unless the context requires otherwise,
refer to this Agreement taken as a whole and not to any particular Section or
subsection (or other part or subdivision) hereof. As used in this Agreement, the
masculine, feminine and neuter genders shall be deemed to include the others if
the context requires, and if the context requires, the use of the singular shall
include the plural and visa versa. This Agreement is the product of mutual
negotiations between and among the Parties and their respective counsels, and no
Party shall be deemed the draftsperson hereof or of any portion or provision
hereof. Accordingly, in the event of any ambiguity or inconsistency in any
provision of this Agreement, the same shall not be interpreted against any Party
as the party responsible for drafting or providing such provision.
(K) Remedies. All rights and remedies of the Beneficiaries hereunder
are cumulative to the full extent permitted by law.
(L) Miscellaneous Provisions. This Agreement is subject to certain
provisions, as to governing law and other matters, as set forth in Article 11 of
the Purchase Agreement.
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IN WITNESS WHEREOF, each of the Parties, intending to be bound hereby,
has caused this Agreement to be executed and delivered on its behalf by an
officer or other representative thereunto duly authorized, all as of the date
first above written.
OPTION TECHNOLOGIES
INTERACTIVE LLC
By:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chief Financial Officer
FLEXNER XXXXXXXX & ASSOCIATES MEETINGNET INTERACTIVE, INC.
By: By;
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Name: Xxxxxxx X. Xxxxxxx Name: Xxx Xxxxxxxx
Title: President Title: President
By: By:
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxx Xxxx
Title: Chief Financial Officer Title: Chief Financial Officer
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