[EXECUTION COPY]
EXHIBIT 10.22
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of April 1, 2003 (this "GUARANTY"), made by
Guideline Research Corp., a corporation organized and existing under the laws of
the State of New York ("GUIDELINE"), and each of the subsidiaries of Guideline
listed on Schedule I attached hereto (each such subsidiary, individually, a
"SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS"; each such
Subsidiary Guarantor and Guideline, a "GUARANTOR" and, collectively, the
"GUARANTORS") in favor of JPMorgan Chase Bank (the "BANK").
PRELIMINARY STATEMENTS
(1) Find/SVP, Inc., a corporation organized and existing under the laws of
the State of New York (the "BORROWER"), issued (i) the Amended and Restated Term
Promissory Note, dated April 1, 2003, in the principal amount of $1,500,000, and
(ii) the Amended and Restated Senior Grid Promissory Note, dated April 1, 2003,
in the principal amount of $1,000,000, in each case payable to the order of the
Bank (the foregoing two promissory notes, as the same may be amended, restated,
supplemented or otherwise modified from time to time, being hereinafter referred
to, collectively, as the "NOTES").
(2) The Borrower has requested the Bank's consent to the acquisition by
the Borrower of 100% of the outstanding shares of common stock of Guideline and
to the incurrence of up to $3,000,000 of subordinated indebtedness in order to
finance such acquisition. After giving effect to such acquisition, the Borrower
will own directly 100% of the issued and outstanding shares of common stock of
Guideline. Guideline owns directly 100% of the issued and outstanding shares of
common stock of each of the Subsidiary Guarantors.
(3) As a condition to the Bank's consent to such acquisition and such
incurrence of subordinated indebtedness, the Guarantors are required to enter
into this Guaranty. The Guarantors will derive substantial direct and indirect
benefit from the transactions contemplated by the Notes.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Bank to make loans under the Notes and to consent to such acquisition and
indebtedness, each of the Guarantors hereby agrees as follows:
SECTION 1. CERTAIN DEFINED TERMS. Unless otherwise defined herein,
capitalized terms shall have the meaning assigned to such terms in the Notes.
SECTION 2. GUARANTY. The Guarantors hereby jointly and severally
unconditionally and irrevocably guarantee the punctual payment when due, whether
at stated maturity, by acceleration or otherwise (including, without limitation,
all amounts which would have become
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due but for the operation of the automatic stay under Section 362(a) of the
Federal Bankruptcy Code, 11 U.S.C. ss. 362(a)), of all obligations of the
Borrower now or hereafter existing to the Bank, including, but not limited to,
all obligations of the Borrower now or hereafter existing under the Notes and
the other Facility Documents to which the Borrower is or will be a party,
whether for principal, interest, fees, expenses or otherwise (such obligations
being the "OBLIGATIONS"), and agrees to pay any and all expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Bank in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts that constitute part of the Obligations and would be owed by the
Borrower to the Bank but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower or any other Guarantor. Notwithstanding the
foregoing, the obligations of each Guarantor hereunder shall be limited to a
maximum aggregate amount equal to the greatest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law.
SECTION 3. GUARANTY ABSOLUTE. The Guarantors jointly and severally
guarantee that the Obligations will be paid strictly in accordance with the
respective terms of the Notes, the other Facility Documents and any other
documents that evidence the Obligations (collectively, the "LOAN DOCUMENTS"),
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Bank with respect
thereto. The obligations of each Guarantor under this Guaranty are independent
of the Obligations, and a separate action or actions may be brought and
prosecuted against such Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Guarantor or
whether the Borrower or any other Guarantor is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of any of the Notes or
the other Loan Documents, or any other agreement or instrument relating
thereto or evidencing any other Obligations;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure from any Note or any other Loan
Document, including any increase in the Obligations resulting from the
extension of additional credit to the Borrower or any of its Subsidiaries
or otherwise;
(iii) any taking, exchange, release 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 Obligations;
(iv) the existence of any claim, set-off, defense or other right
which such Guarantor may have at any time against the Bank or any other
Person, whether in connection with this Guaranty, the transactions
contemplated in any of the Notes or any other Loan Documents, or any
unrelated transaction;
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(v) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other disposition
of any collateral for all or any of the Obligations or any other assets of
the Borrower or any of its Subsidiaries;
(vi) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries; or
(vii) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by the Bank upon the insolvency, bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise, all as though such
payment had not been made.
SECTION 4. WAIVER. Each Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Guaranty and any requirement that the Bank protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust
any right or take any action against the Borrower or any other Person or any
collateral.
SECTION 5. SUBROGATION. Each Guarantor hereby irrevocably waives any claim
or other rights which it may now or hereafter acquire against the Borrower or
any other Guarantor that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, assignment, contribution, exoneration, implied contract or
indemnification, any right to participate in any claim or remedy of the Bank
against the Borrower or any other Guarantor or any collateral that the Bank now
has or hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Borrower or any other Guarantor, directly
or indirectly, in cash or other property or by set-off or in any manner, payment
or security on account of such claim or other rights, until such time as the
Obligations shall have been indefeasibly paid in full in cash. If any amount
shall be paid to any Guarantor in violation of the preceding sentence, such
amount shall be deemed to have been paid to such Guarantor for the benefit of,
and held in trust for, the Bank, shall be segregated from other funds of such
Guarantor, and shall forthwith be paid to the Bank in the exact form received by
such Guarantor (duly endorsed by such Guarantor to the Bank) to be credited and
applied against the Obligations, whether matured or unmatured, in such order as
the Bank may determine. Each Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by the Notes
and the other Loan Documents and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants as follows:
(a) Such Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the state of its organization and is duly
qualified to do business in all
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other jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary (except where the failure
to so qualify would not reasonably be expected to have a material adverse effect
on the business, financial condition, operations or results of operations of
such Guarantor and its Subsidiaries, taken as a whole).
(b) The execution, delivery and performance by such Guarantor of this
Guaranty and the respective Loan Documents to which it is or will be a party are
within such Guarantor's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not contravene (i) such
Guarantor's certificate of incorporation or by-laws, (ii) law, or (iii) any
legal or contractual restriction binding on or affecting such Guarantor.
(c) All authorizations, approvals and consents of any governmental
authority or other Person that are required to have been obtained by it with
respect to this Guaranty have been obtained and are in full force and effect..
(d) This Guaranty is the legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as 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).
(e) There are no actions, suits, proceedings or investigations pending or,
to the knowledge of such Guarantor, threatened against or affecting such
Guarantor before any court, governmental agency or arbitrator, which involve
forfeiture of any assets of such Guarantor or which may materially adversely
affect the financial condition, operations, properties, business or prospects of
such Guarantor or the ability of such Guarantor to perform its obligation under
this Guaranty.
(f) Such Guarantor has filed all tax returns (Federal, state and local)
required to be filed and paid all taxes shown thereon to be due, including
interest and penalties, or, to the extent such Guarantor is contesting in good
faith an assertion of liability based on such returns, has provided adequate
reserves for payment thereof in accordance with generally accepted accounting
principles
(g) Guideline is a wholly-owned Subsidiary of the Borrower, and each
Subsidiary Guarantor is a wholly-owned Subsidiary of Guideline.
(h) The operations and properties of such Guarantor comply in all respects
with all applicable laws, rules, regulations and orders of any governmental
authority, the noncompliance with which could reasonably be expected to have a
material adverse effect upon the financial condition, operations, properties,
business or prospects of such Guarantor or the ability of such Guarantor to
perform its obligation under this Guaranty.
(i) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
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(j) Such Guarantor has, independently and without reliance upon the Bank
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Guaranty.
(k) Such Guarantor is, and upon the consummation of the transactions
contemplated under the Loan Documents and this Guaranty will be, solvent, and
has, and upon the consummation of such transactions will have, assets having a
fair value in excess of the amount required to pay its probable liabilities on
its existing Debt as they become absolute and matured, and does not have, and
will not have, upon the consummation of such transactions, an unreasonably small
capital for the conduct of its business as it is now being conducted.
SECTION 7. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by any Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 8. 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 any Guarantor, at its address set forth in Schedule I
hereto, and if to the Bank, at its address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party. All such notices and other communications shall, when mailed,
telegraphed, telecopied, telexed or cabled, be effective five days after when
deposited in the mails, or when delivered to the telegraph company, telecopied,
confirmed by telex answerback or delivered to the cable company, respectively.
SECTION 9. NO WAIVER; REMEDIES. No failure on the part of the Bank 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 Bank 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 10. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, the Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Bank to
or for the credit or the account of any Guarantor against any and all of the
obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not the Bank shall have made any demand under this Guaranty and
although such obligations may be contingent and unmatured. The Bank agrees to
notify promptly such Guarantor after any such set-off and application made by
the Bank, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Bank under this
Section 10 are in
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addition to other rights and remedies (including other rights of set-off) which
the Bank may have.
SECTION 11. WAIVER. Each Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Guaranty and any requirement that the Bank protect, secure, perfect or
insure any lien or any property subject thereto or exhaust any right or take any
action against the Borrower, any other Guarantor or any other Person (including,
without limitation, any other guarantor) or any collateral securing the
Obligations.
SECTION 12. CONTINUING GUARANTY. This Guaranty is a continuing guaranty
and shall (i) remain in full force and effect until the indefeasible payment in
full in cash of the Obligations and all other amounts payable under this
Guaranty, (ii) be binding upon each Guarantor, its successors and assigns, and
(iii) inure to the benefit of, and be enforceable by, the Bank and its
successors, transferees and assigns. Notwithstanding the foregoing, 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 Bank, and any such
transfer or assignment made in violation of the foregoing shall be null and void
AB INITIO.
SECTION 13. WAIVER OF JURY TRIAL. EACH OF THE GUARANTORS AND THE BANK
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE NOTES
OR OTHER LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER
OR THEREUNDER.
SECTION 14. 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 15. 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 16. GOVERNING LAW. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York. Each Guarantor
(i) irrevocably submits to the jurisdiction of any New York State court or
Federal court sitting in New York City in any action arising out of this
Guaranty or any of the Notes or other Loan Documents, (ii) agrees that all
claims in such action may be decided in such court, (iii) waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum and (iv)
consents to the service of process by mail. A final judgment in any such action
shall be conclusive and may be enforced in other jurisdictions. Nothing herein
shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other court.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GUIDELINE RESEARCH CORP.
By /s/ Xxxxx Xxxxx
------------------------------
Title: Vice President
TABLINE DATA SERVICES, INC.
By /s/ Xxxxx Xxxxx
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Title: Vice President
GUIDELINE/CHICAGO, INC.
By /s/ Xxxxx Xxxxx
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Title: Vice President
ADVANCED ANALYTICS, INC.
By /s/ Xxxxx Xxxxx
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Title: Vice President
GUIDELINE CONSULTING CORP.
By /s/ Xxxxx Xxxxx
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Title: Vice President
Signature Page to Guaranty
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The foregoing Guaranty is
hereby accepted:
JPMORGAN CHASE BANK
By /s/ Xxxxxx X. Xxxxxx
------------------------------
Title: Vice President
Signature Page to Guaranty
