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GUARANTY
GUARANTY,
dated as of November 30, 2007, by the Guarantors identified as
such on the signature pages hereof (the “
Guarantors ”,
and individually, a “
Guarantor ”)
in favor of (i) Woodside Agency Services, LLC, as collateral agent
(hereinafter, in such capacity, the “
Collateral
Agent ”)
for itself and the Holders (as such term is defined in the Purchase
Agreement referred to below) under the Securities Purchase and Loan
Agreement, dated as of November 30, 2007 (as amended and in effect
from time to time, the “
Purchase Agreement ”),
among National Investment Managers Inc., a Florida corporation (the
“
Company ”),
the Holders and the Collateral Agent and (ii) each of the
Holders.
WHEREAS,
the Company and the Guarantors are members of a group of
related corporations, the success of any one of which is
dependent in part on the success of the other members of such
group;
WHEREAS,
each Guarantor expects to receive substantial direct and
indirect benefits from the extensions of credit accommodations
to the Company by the Holders pursuant to the Purchase
Agreement (which benefits are hereby
acknowledged);
WHEREAS,
it is a condition precedent to the Holders’ extending
any credit accommodations to the Company under the Purchase
Agreement that the Guarantors execute and deliver to the
Collateral Agent and the Holders, a guaranty substantially in
the form hereof; and
WHEREAS,
each Guarantor wishes to guaranty the Company’s
obligations to the Holders and the Collateral Agent under or
in respect of the Purchase Agreement as provided
herein;
NOW,
THEREFORE, the Guarantor hereby agrees with the Holders and
the Collateral Agent as follows:
1.
Definitions .
The term “Obligations” and all other capitalized terms
used herein without definition shall have the respective meanings
provided therefor in the Purchase Agreement.
2.
Guaranty of Payment and Performance
.
Each Guarantor hereby guarantees to the Holders and the Collateral
Agent the full and punctual payment when due (whether at stated
maturity, by required pre-payment, by acceleration or otherwise),
as well as the performance, of all of the Obligations including all
such which would become due but for the operation of the automatic
stay pursuant to §362(a) of the Federal Bankruptcy Code and
the operation of §§502(b) and 506(b) of the Federal
Bankruptcy Code. This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and
performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any
requirement that the Collateral Agent or any Holder first attempt
to collect any of the Obligations from the Company or resort to any
collateral security or other means of obtaining payment. Should the
Company default in the payment or performance of any of the
Obligations, the obligations of each Guarantor hereunder with
respect to such Obligations in default shall, upon demand by the
Collateral Agent or the Majority Holders, become immediately due
and payable to the Collateral Agent, for the benefit of the Holders
and the Collateral Agent, without demand or notice of any nature,
all of which are expressly waived by each Guarantor. Payments by
each Guarantor hereunder may be required by the Collateral Agent or
the Marjority Holders on any number of occasions.
3.
Guarantors’ Agreement to Pay Enforcement Costs,
etc .
Each Guarantor further agrees, as the principal obligor and not as
a guarantor only, to pay to the Collateral Agent, on demand, all
costs and expenses (including court costs and legal expenses)
incurred or expended by the Collateral Agent or any Holder in
connection with the Obligations, this Guaranty and the enforcement
thereof, together with interest on amounts recoverable under this
§3 from the time when such amounts become due until payment,
whether before or after judgment, at the rate of interest for
overdue principal set forth in the Purchase Agreement, provided
that if such interest exceeds the maximum amount permitted to be
paid under applicable law, then such interest shall be reduced to
such maximum permitted amount.
4.
Waivers by Guarantors; Holders’ Freedom to
Act .
Each Guarantor agrees that the Obligations will be paid and
performed strictly in accordance with their respective terms,
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 Collateral Agent or any Holder with respect thereto.
Each Guarantor waives promptness, diligence, presentment, demand,
protest, notice of acceptance, notice of any Obligations incurred
and all other notices of any kind, all defenses which may be
available by virtue of any valuation, stay, moratorium law or other
similar law now or hereafter in effect, any right to require the
marshalling of assets of the Company or any other entity or other
person primarily or secondarily liable with respect to any of the
Obligations, and all suretyship defenses generally. Without
limiting the generality of the foregoing, each Guarantor agrees to
the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the
obligations of such Guarantor hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by (i) the
failure of the Collateral Agent or any Holder to assert any claim
or demand or to enforce any right or remedy against the Company or
any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions,
compromise, refinancing, consolidation or renewals of any
Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers,
compromise, refinancing, consolidation or other amendments or
modifications of any of the terms or provisions of the Purchase
Agreement, the other Financing Agreements or any other agreement
evidencing, securing or otherwise executed in connection with any
of the Obligations, (iv) the addition, substitution or release of
any entity or other person primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights which the Collateral
Agent or any Holder may have against any collateral security or
other means of obtaining repayment of any of the Obligations; (vi)
the impairment of any collateral securing any of the Obligations,
including without limitation the failure to perfect or preserve any
rights which the Collateral Agent or any Holder might have in such
collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security; or
(vii) any other act or omission which might in any manner or to any
extent vary the risk of such Guarantor or otherwise operate as a
release or discharge of such Guarantor, all of which may be done
without notice to such Guarantor. To the fullest extent permitted
by law, each Guarantor hereby expressly waives any and all rights
or defenses arising by reason of (A) any “one action”
or “anti-deficiency” law which would otherwise prevent
the Collateral Agent or any Holder from bringing any action,
including any claim for a deficiency, or exercising any other right
or remedy (including any right of set-off), against such Guarantor
before or after the Collateral Agent’s or such Holder’s
commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or (B) any
other law which in any other way would otherwise require any
election of remedies by the Collateral Agent or any
Holder.
5.
Unenforceability of Obligations Against
Company .
If for any reason the Company has no legal existence or is under no
legal obligation to discharge any of the Obligations, or if any of
the Obligations ha
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