EXHIBIT 2.7
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty"), dated as of December 31, 2002, is
executed by NEWTEK BUSINESS SERVICES, INC., a New York corporation
("Guarantor"), in favor of DB STRUCTURED PRODUCTS, INC., a Delaware corporation
("Counterparty").
RECITALS
On or before the date hereof, Guarantor, will acquire Commercial Capital
Corporation ("CCC") by merger, which will be renamed Newtek Small Business
Finance, Inc. ("NSBF"). In connection with the merger, Guarantor has requested
that the Master Loan and Security Agreement dated as of August 26, 1997, as
amended from time to time by and among CCC and Global Alliance Finance Company,
L.L.C. (the "Loan Agreement") be amended and restated substantially in the form
attached hereto (the "Amended and Restated Loan Agreement").
The Counterparty's willingness to enter into the Amended and Restated
Loan Agreement is conditioned on the Guarantor's execution and delivery of this
Guaranty. Guarantor has agreed to provide the guaranty of the Guaranteed
Obligations (as defined herein) to the Counterparty as set forth herein.
All capitalized terms not otherwise defined herein shall have the
meaning assigned to them in that certain Amended and Restated Loan Agreement.
Section 1. GUARANTY.
(a) To induce the Counterparty to enter into the Amended and
Restated Loan Agreement, subject to the terms and provisions hereof, Guarantor
absolutely, unconditionally and irrevocably guarantees to the Counterparty and
its respective successors and permitted assigns (i) the prompt payment when due,
subject to any applicable grace or deferral period, of the present and future
payment obligations of NSBC pursuant to the Amended and Restated Loan Agreement
(collectively, the "Amended and Restated Loan Agreement Obligations"), and (ii)
the prompt payment when due, subject to any applicable grace or deferral period
of the present and future payment obligations of NSBC or its affiliates pursuant
to the Loan Documents (the "Loan Document Obligations," and together with the
Amended and Restated Loan Agreement Obligation, the "Guaranteed Obligations").
This Guaranty does not extend to the payment of any damages assertable against
NSBC that are excluded or limited by any provision of the Amended and Restated
Loan Agreement.
(b) The Guarantor acknowledges and agrees that the Guaranteed
Obligations are a guarantee of payment, and not collection, and that the
Counterparty shall have no duty or obligation to proceed or exhaust any remedy
against NSBC, or to give any notice whatsoever to the Guarantor, prior to
collecting amounts due from or exercising other remedies against the Guarantor
hereunder.
(c) The obligations of the Guarantor under this Guaranty are
independent of the obligations of NSBC, and a separate action or actions may be
brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against NSBC
or whether NSBC is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstances whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
(d) The Guarantor will not exercise any rights that it may acquire
by way of subrogation under this Guaranty, by any payment made hereunder or
otherwise, until all Guaranteed Obligations shall have been satisfied in full or
paid in full in cash. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all the Guaranteed Obligations of NSBC
shall not have been satisfied in full or paid in full in cash, such amount shall
be held in trust for the benefit of the Counterparty and shall forthwith be paid
to the Counterparty to be credited and applied upon the Guaranteed Obligations
of NSBC.
(e) Notwithstanding anything in this Guaranty to the contrary, the
Guaranteed Obligations are only those undertakings specifically described above.
Section 2. Covenant of the Guarantor. The obligations of Guarantor
under this Guaranty shall rank at all times during the term of this Guaranty at
least pari passu with all other senior unsecured indebtedness of the Guarantor.
Section 3. Limitation of Liability. Notwithstanding any provision of
this Guaranty to the contrary, in no event shall Guarantor be liable for any
lost profits, lost sales, business interruption, lost business opportunities,
lost or disallowed tax credits, lost tax benefits, consequential, incidental,
punitive or exemplary damages, except to the extent such amounts are
specifically included in the Guaranteed Obligations pursuant to the terms of the
Amended and Restated Loan Agreement.
Section 4. CONSENTS AND WAIVERS.
(a) Guarantor hereby waives (i) notice of acceptance of this
Guaranty, (ii) presentment and demand concerning the liabilities of Guarantor,
except for the demand for payment specified in Section 6, and (iii) any right to
require that any action or proceeding be brought against NSBC or any of its
respective assets or properties, or against any other person, or to require that
Counterparty seek enforcement of any performance against NSBC or any other
person, prior to any action against Guarantor under the terms hereof.
(b) Except as to applicable statutes of limitation, no delay of
Counterparty in the exercise of, or failure to exercise, any rights hereunder
shall operate as a waiver of such rights, a waiver of any other rights or a
release of Guarantor from any obligations hereunder.
(c) Guarantor consents to the renewal, compromise, extension,
acceleration or other changes in the time of payment of or other changes in the
terms of the Guaranteed Obligations, or any part thereof or any changes or
modifications to the terms of the Amended and Restated Loan Agreement.
Section 5. Reservation. Guarantor reserves to itself all rights,
setoffs, counterclaims and other defenses to which NSBC is or may be entitled to
arising from or out of the Amended
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and Restated Loan Agreement except for defenses arising out of the bankruptcy,
insolvency, dissolution, or liquidation of NSBC.
Section 6. Demands and Notices. If NSBC fails or refuses to pay any
Guaranteed Obligation, Counterparty shall make a demand upon Guarantor (a
"Payment Demand"). A Payment Demand shall be in writing and shall reasonably
specify in what manner and what amount NSBC has failed to pay and an explanation
of why such payment is due, with a specific statement that Counterparty is
calling upon Guarantor to pay under this Guaranty. A Payment Demand satisfying
the foregoing requirements shall be required with respect to any Guaranteed
Obligation before Guarantor is required to pay such Guaranteed Obligations and
shall be deemed sufficient notice to Guarantor that it must pay the Guaranteed
Obligation specified. A single written Payment Demand shall be effective as to
any specific default during the continuance of such default, until NSBC or
Guarantor has cured such default, and additional written demands concerning such
default shall not be required until such default is cured.
Section 7. Representations and Warranties. Guarantor hereby
represents and warrants as follows:
(a) Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation as set forth
on the first page hereof, and Guarantor has all requisite corporate power and
authority to execute, deliver and perform this Guaranty.
(b) The execution, delivery, and performance of this Guaranty have
been and remain duly authorized by all necessary corporate action by Guarantor
and do not contravene any provision of law or of the Guarantor's constitutional
documents or any contractual restriction binding on the Guarantor or its assets.
(c) No authorization, approval, consent or order of, or registration
or filing with, any court or other governmental body having jurisdiction over
Guarantor is required on the part of Guarantor for the execution and delivery of
this Guaranty, and other than violations that either individually or in the
aggregate would not have a material adverse effect on Guarantor's ability to
perform its obligations hereunder.
(d) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms except as
limited by (i) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), or (ii)
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights and by general equitable principles.
Section 8. Assignment. Neither Guarantor nor Counterparty may assign
its rights, interest, or obligations hereunder to any other person without the
prior written consent of Guarantor or Counterparty, as the case may be;
provided, however, that Counterparty may assign its rights, interest, or
obligations hereunder to any person who is a permitted transferee under the
Amended and Restated Loan Agreement.
Section 9. Survival of Representations, Warranties and Indemnities.
All representations, warranties, indemnities, and undertakings to pay costs and
expenses contained in this Agreement or made in writing by or on behalf of the
Guarantor, as the case may be, in
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connection herewith shall survive the execution and delivery of this Agreement
and may be relied upon by the Counterparty or any assignees of the Counterparty
permitted under this Agreement.
Section 10. Expenses. The Guarantor agrees to pay upon written demand
all out-of-pocket expenses (including the reasonable fees and expenses of the
Counterparty's counsel) relating to the enforcement or protection of the rights
of the Counterparty hereunder, provided, however, that the Guarantor shall not
be liable for any such out-of-pocket expenses of the Counterparty if no payment
from the Guarantor pursuant to the terms and conditions of this Agreement is
due.
Section 11. Severability. If any provision of this Guaranty or the
application thereof to any person or circumstance shall be invalid or
unenforceable, then the remaining provisions or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall continue to be valid and enforceable.
Section 12. Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW RULES
THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
Section 13. Entire Agreement. The parties hereto acknowledge and agree
that this Guaranty represents all of the agreements and understandings relating
to the subject matter hereof and supersedes all prior written and oral
agreements or understandings between or among Guarantor and Counterparty.
Section 14. Interpretation and Reliance. No presumption will apply in
favor of any party hereto in the interpretation of this Guaranty or in the
resolution of any ambiguity of any provisions hereof.
Section 15. No Oral Change. No amendment of any provision of this
Guaranty shall be effective unless it is in writing and signed by Guarantor. No
waiver of any provision of this Guaranty, and no consent to any departure by any
party therefrom, shall be effective unless it is in writing and signed by the
party against which such waiver or consent is asserted, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 16. Headings and References. The headings used herein are for
purposes of convenience only and shall not be used in construing the provisions
hereof.
Section 17. Notices. Any notice or communication required or permitted
hereunder shall be given in writing, sent by (a) personal delivery, (b)
expedited delivery service with proof of delivery, (c) registered or certified
United States mail, postage prepaid, or (d) prepaid telegram or facsimile,
addressed to the appropriate party as follows:
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To Guarantor: Newtek Business Services, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Cozen X'Xxxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx Xxx
Facsimile: (000) 000-0000
To Counterparty: DB Structured Products, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to: XxXxx Xxxxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: R. Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Notice given by personal delivery or mail shall be effective upon
actual receipt. Notice given by telegram or telecopier shall be effective upon
actual receipt if received during the recipient's normal business hours, or at
the beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All Notices by telegram or
telecopier shall be confirmed promptly after transmission in writing by
certified mail or personal delivery. Any party may change any address to which
Notice is to be given to it by giving notice as provided above of such change of
address.
Section 18. Counterparts. This Guaranty may be executed in any number
of counterparts, each of which when so executed shall be deemed to constitute
one and the same Guaranty.
Section 19. Certain Obligations. Guarantor agrees that to the extent
NSBC makes any payment in respect of the Guaranteed Obligations, which payment
or any part thereof is subsequently required to be repaid by a Counterparty or
declared to be fraudulent or preferential, set aside, recovered, rescinded or is
required to be retained by or repaid to a trustee, receiver, or any other person
under any bankruptcy code, common law, or equitable cause, then and to the
extent of such payment, the obligation or the part thereof intended to be
satisfied shall be revived and continued in full force and effect with respect
to Guarantor's obligations hereunder, as if
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such payment had not been made. The terms of this Section 19 shall survive
termination of the Amended and Restated Loan Agreement.
Section 20. Dispute Resolution. Any dispute between the Guarantor, on
the one hand, and the Counterparty on the other, shall be resolved in accordance
with Sections 11.10 and 11.11 of the Amended and Restated Loan Agreement.
Section 21. Legal Opinions. Counterparty shall have received on or
before the date hereof the opinion of counsel to Guarantor, to the effect that
(i) Guarantor has all requisite corporate power and authority to execute and
deliver the Guaranty Agreement and to perform its obligations thereunder, (ii)
the Guaranty Agreement has been duly authorized, executed and delivered by
Guarantor and constitutes the legal, valid and binding agreement, enforceable
against Guarantor in accordance with its terms, (iii) the execution, delivery,
and performance by Guarantor of the Guaranty Agreement (a) do not require any
consent, approval, authorization, exemption, license, permission or order of
filing, recording, or registration with, or qualification by or notice to, any
person or governmental body under any applicable law and (b) do not result in a
breach of or violation of any of the terms and provisions of, or constitute a
default under Guarantor's certificate of incorporation and bylaws, each as
amended, or any agreement, judgment, injunction, order, decree, or other
instrument to which Guarantor is subject.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Guaranty as of the date first above written.
NEWTEK BUSINESS SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
