Exhibit 10.6
CONTINUING GUARANTY
AGREEMENT
THIS CONTINUING
GUARANTY AGREEMENT (this "Guaranty") is made on November 21, 2008,
by ANCHOR FUNDING SERVICES, INC. , a Delaware corporation
with a mailing address at 10801 Johnston Road, Suite 210,
Charlotte, North Carolina 28226 ("Guarantor"), in favor of each of
the financial institutions (collectively, "Lenders") now or
hereafter parties to the Loan Agreement (as defined below) and
TEXTRON FINANCIAL CORPORATION , a Delaware corporation with
a mailing address at 11575 Great Oaks Way, Suite 210, Alpharetta,
Georgia 30022, as administrative and collateral
agent (in such capacity, together with its
successors in such capacity, the "Agent") for each of the Lenders
(Agent and each Lender being referred to individually as a
"Guaranteed Party" and collectively as the "Guaranteed
Parties").
Recitals
:
Guaranteed Parties are parties with
ANCHOR FUNDING SERVICES, LLC , a North Carolina limited
liability company ("Borrower"), to a certain Loan and Security
Agreement dated November 21, 2008 (as at any time amended,
restated, supplemented or otherwise modified, the "Loan
Agreement"). Pursuant to the Loan Agreement, Guaranteed
Parties have agreed, subject to all the terms and conditions
thereof, to make loans and other extensions of credit to Borrower
from time to time secured by security interests in and liens upon
certain assets of Borrower.
A condition set forth in the Loan Agreement to
Guaranteed Parties' obligation to make loans or other extensions of
credit to Borrower is Guarantor's execution and delivery of this
Guaranty.
To induce Guaranteed Parties to make loans or
otherwise extend credit or other financial accommodations from time
to time to Borrower under the Loan Agreement, Guarantor is willing
to execute this Guaranty.
Agreement
:
NOW, THEREFORE, for Ten Dollars ($10) in hand
paid and in consideration of the premises and the mutual covenants
and agreements set forth herein, Guarantor hereby agrees as
follows:
1.
Definitions; Rules of
Construction . Capitalized terms used herein, unless otherwise
defined, shall have the meanings ascribed to them in the Loan
Agreement. As used herein, the words "herein," "hereof,"
"hereunder," and "hereon" shall have reference to this Guaranty
taken as a whole and not to any particular provision hereof; and
the word "including" shall mean "including, without
limitation."
2.
Guaranty
.
(a) Guarantor hereby
unconditionally and absolutely guarantees to each Guaranteed Party
the due and punctual payment, performance and discharge (whether
upon stated maturity, demand, acceleration or otherwise in
accordance with the terms thereof) of all of the Obligations,
whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, joint or several, primary or
secondary, liquidated or unliquidated, now existing or hereafter
incurred, created or arising, and howsoever evidenced, whether
created directly to or acquired by assignment or otherwise by any
Guaranteed Party, and whether Borrower may be liable individually
or jointly with others, and regardless of whether recovery upon any
of such Obligations becomes barred by any statute of limitations,
is void or voidable under any law relating to fraudulent
obligations or otherwise or is or becomes invalid or unenforceable
for any other reason (all of the Obligations being jointly referred
to herein as the "Guaranteed Obligations"). Without
limiting the generality of the foregoing, the term "Guaranteed
Obligations" as used herein shall include all debts, liabilities
and obligations incurred by Borrower to any of Guaranteed Parties
in any bankruptcy case of Borrower and any interest, fees or other
charges accrued in any such bankruptcy, whether or not any such
interest, fees or other charges are recoverable from Borrower or
its estate under 11 U.S.C. § 506.
(b) No
Guaranteed Party shall be under any obligation to marshal any
assets in favor of Guarantor or in payment of any of the Guaranteed
Obligations. If and to the extent any Guaranteed Party
receives any payment on account of any of the Guaranteed
Obligations (whether from Borrower, Guarantor or a third party
obligor or from the sale or other disposition of any Collateral)
and such payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other Person
under any state, federal or foreign bankruptcy
or other insolvency law, common law or equitable cause, then the
part of the Guaranteed Obligations intended to be satisfied shall
be revived and continued in full force and effect as if said
payment had not been made. The foregoing provisions of
this paragraph shall survive payment in full of the Obligations and
the termination of this Guaranty.
(c) Guaranteed
Parties shall have the right to seek recourse against Guarantor to
the full extent provided for herein and against Borrower to the
full extent provided for in any of the Loan
Documents. No election to proceed in one form of action
or proceeding, or against any Person, or on any obligation, shall
constitute a waiver of any Guaranteed Party's right to proceed in
any other form of action or proceeding or against any other Person
unless such Guaranteed Party has expressly waived such right in
writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Guaranteed
Parties against Borrower under the Loan Documents or any other
instrument or agreement evidencing or securing Guaranteed
Obligations shall serve to diminish the liability of Guarantor for
the balance of the Guaranteed Obligations.
3.
Nature of
Guaranty . This Guaranty is a primary, immediate and
original obligation of Guarantor; is an absolute, unconditional,
continuing and irrevocable guaranty of payment of the Guaranteed
Obligations and not of collectibility only; is not contingent upon
the exercise or enforcement by Guaranteed Parties of whatever
rights or remedies Guaranteed Parties may have against Borrower or
others, or the enforcement of any Lien or realization upon any
Collateral or other security that any of Guaranteed Parties may at
any time possess; and shall remain in full force and effect without
regard to future changes in conditions, including change of law or
any invalidity or unenforceability of any Guaranteed Obligations or
agreements evidencing same. This Guaranty shall be in
addition to any other present or future guaranty or other security
for any of the Guaranteed Obligations, shall not be prejudiced or
unenforceable by the invalidity of any such other guaranty or
security, and is not conditioned upon or subject to the execution
by any other Person of this Guaranty or any
other guaranty or suretyship agreement.
4.
Payment and Enforcement of
Guaranteed Obligations . (a) If Guarantor should
dissolve or become insolvent (within the meaning of the Rhode
Island Uniform Commercial Code), or if a petition for an order for
relief with respect to Guarantor should be filed by or against
Guarantor under any chapter of the Bankruptcy Code, or if a
receiver, trustee, conservator or other custodian should be
appointed for Guarantor or any of Guarantor's property, or if an
Event of Default shall occur and be continuing, then, in any such
event and whether or not any of the Guaranteed Obligations are then
due and payable or the maturity thereof has been accelerated or
demand for payment thereof has been made, Guaranteed Parties may,
without notice to Guarantor, make the Guaranteed Obligations
immediately due and payable hereunder as to Guarantor, and
Guaranteed Parties shall be entitled to enforce the obligations of
Guarantor hereunder as if the Guaranteed Obligations were then due
and payable in full. If any of the Guaranteed
Obligations are collected by or through an attorney at law,
Guarantor agrees to pay to Guaranteed Parties reasonable attorneys'
fees and court costs. Guarantors shall be obligated to
make multiple payments under this Guaranty to the extent necessary
to cause full payment of the Guaranteed Obligations.
(b) Any
and all payments by Guarantor hereunder shall be made free and
clear of and without deduction for any setoff, counterclaim, or
withholding so that, in each case, Guaranteed Parties shall
receive, after giving effect to any taxes (excluding taxes imposed
on the overall net income of Guaranteed Parties to the extent
excluded pursuant to the Loan Agreement), the full amount that they
would otherwise be entitled to receive with respect to the
Guaranteed Obligations (but without duplication of amounts for
taxes already included in the Guaranteed
Obligations). If for any reason Borrower has no legal
existence or is under no legal obligation to discharge any of the
Guaranteed Obligations, or if any of the Guaranteed Obligations
become unrecoverable from Borrower by reason of Borrower's
insolvency, bankruptcy or reorganization or by other operation of
law or for any other reason, this Guaranty shall nevertheless be
binding on Guarantor to the same extent as if Guarantor had at all
times been the principal obligor on all such Guaranteed
Obligations. If acceleration of the time for payment of
any of the Guaranteed Obligations is stayed upon the insolvency,
bankruptcy, dissolution or reorganization of debt or for any other
reason, all such amounts otherwise subject to acceleration under
the terms of any Loan Documents or other instrument or agreement
evidencing or securing the payment of the Guaranteed Obligations
shall nevertheless be immediately due and payable by
Guarantor.
(c) Guarantor
acknowledges that Agent is authorized and empowered to enforce this
Guaranty for the benefit of all of the Guaranteed Parties and to
collect from Guarantor the amount of the Guaranteed Obligations
from time to time, in Agent's own name and without the necessity of
joining any other Guaranteed Party in any action, suit or other
proceeding to enforce this Guaranty.
5.
Specific Waivers of
Guarantor . (a) To the fullest extent permitted
by Applicable Law, Guarantor does hereby waive
notice of each Guaranteed Party's acceptance hereof and reliance
hereon; notice of the extension of credit from time to time by
Guaranteed Parties to Borrower and the creation, existence or
acquisition of any Guaranteed Obligations; notice of the amount of
Guaranteed Obligations of Borrower to Guaranteed Parties from time
to time (subject, however, to Guarantor's right to make inquiry of
Agent to ascertain the amount of Guaranteed Obligations at any
reasonable time); notice of any adverse change in Borrower's
financial condition or of any other fact which might increase
Guarantor's risk; notice of presentment for payment, demand,
protest and notice thereof as to any instrument; notice of default
or acceleration; all other notices and demands to which Guarantor
might otherwise be entitled; any right Guarantor may have, by
statute or otherwise, to require Guaranteed Parties to institute
suit against Borrower after notice or demand from Guarantor or to
seek recourse first against Borrower or otherwise, or to realize
upon any security for the Guaranteed Obligations, as a condition to
enforcing Guarantor's liability and obligations hereunder; any
defense that Borrower may at any time have or assert based upon the
statute of limitations, the statute of frauds, failure of
consideration, fraud, bankruptcy, lack of legal capacity, usury, or
accord and satisfaction; any defense that other indemnity,
guaranty, or security was to be obtained; any defense or claim that
any Person purporting to bind Borrower to the
payment of any of the Guaranteed Obligations did not have actual or
apparent authority to do so; any right to contest the commercial
reasonableness of the disposition of any Collateral; any defense or
claim that any other act or failure to act by any Guaranteed Party
had the effect of increasing Guarantor's risk of payment; and any
other legal or equitable defense to payment
hereunder. Without limiting the generality of the
foregoing, Guarantor waives all rights to require Guaranteed
Parties to proceed against Borrower.
