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GUARANTY
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1.
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Identification .
This Guaranty (the “
Guaranty ”)
is made as of the ___ day of November, 2007 by _______________, a
_________ corporation with its principal place of business at
________________________ (the “
Guarantor ”)
in favor of RBS Citizens, National Association,
having
a lending office at 28 State Street, Boston, MA 02109 (the
“
Lender ”).
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Background and Reasons for Guaranty .
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2.1
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Loan. On
the date hereof, National Investment Managers Inc., a Florida
corporation, having an address of 545 Metro Place South, Suite 100,
Dublin, OH 43017 (the “
Borrower ”)
executed and delivered (a) a certain Term Promissory Note of even
date herewith from the Borrower to the Lender in the maximum
principal amount of up to $13,000,000.00 and (b) a certain
Revolving Line of Credit Note of even date herewith from the
Borrower to the Lender in the maximum principal amount of
$2,000,000.00 (together, the “
Notes ”).
The obligations of the Borrower are further evidenced by a certain
Revolving Line of Credit and Term Loan Agreement of even date
herewith by and between the Borrower and Lender (the “
Loan Agreement ”).
The Notes are secured by, among other things, a certain Security
Agreement of even date herewith from the Borrower to Lender (the
“
Security Agreement ”).
In addition, the obligations of Guarantor under this Guaranty shall
be secured by a certain Security Agreement of even date herewith
from Guarantor to Lender (the “
Guarantor Security Agreement ”)
granting to Lender a first priority security interest in all assets
of Guarantor. The Notes, the Loan Agreement, the Security
Agreement, this Guaranty, the Guarantor Security Agreement, the
Guaranties of the other Guarantors and all other documents executed
in connection with or related to such documents are sometimes
collectively referred to herein as the “
Loan Documents ”.
The obligations evidenced by the Loan Documents are sometimes
collectively referred to herein as the “
Loans ”.
All capitalized terms used herein and not otherwise defined herein
shall have the meanings as set forth in the Loan
Agreement.
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2.2
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Requirement of Guaranty .
As a condition precedent to the making of the Loan to Borrower,
Lender has required that Guarantor execute and deliver this
Guaranty to Lender.
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2.3
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Consideration to Guarantor .
Guarantor desires to execute and deliver the Guaranty to Lender
because the Borrower has a substantial interest in Guarantor and
Guarantor will receive a direct financial benefit from the credit
extended to Borrower.
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Guaranty by ABR Advisors, Inc. |
Page 1 of 11
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3.
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Guaranty .
Guarantor, in consideration of Lender entering into the Loan
Documents and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and for the
purpose of inducing Lender to enter into the Loan Documents, hereby
irrevocably and unconditionally guarantees to Lender (a) the full,
punctual and prompt payment of all sums payable under the terms of
the Notes and the other Loan Documents, whether at maturity or by
acceleration or otherwise, in immediately available coin and
currency of the United States which is legal tender for the payment
of all public and private debts; (b) the performance of all of
Borrower’s other obligations under the Notes and the other
Loan Documents; and (c) all other obligations of every kind and
description now existing or hereafter arising, direct or indirect,
absolute or contingent, secured or unsecured, matured or
unmatured, primary
or secondary, of Borrower to Lender including, without limitation,
any Hedging Obligations (as defined in
Rider A to
the Notes). The obligations referenced in subsections (a), (b) and
(c) above are collectively referred to herein as the “
Guaranteed Obligations ”.
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4.
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Warranties and Representations .
Guarantor hereby warrants and represents to Lender
that:
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4.1
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The
Board of Directors of the Guarantor have determined the execution,
delivery and performance of this Guaranty to be necessary or
convenient to the conduct, promotion or attainment of the business
of the Borrower and the Guarantor, and to be in the best interests
of the Guarantor and in pursuance of its corporate purposes as an
integral part of the business now conducted and proposed to be
conducted by the Guarantor. The Guarantor expects to receive
substantial direct and indirect benefits from the making of the
Loan to the Borrower. By virtue of the foregoing, after considering
the Guarantor’s probable liability hereunder, the Guarantor
is receiving at least reasonably equivalent value from Lender for
its guaranty and will not be rendered insolvent thereby; and after
giving effect to the transactions contemplated hereby, the
Guarantor does not, and will not, have an unreasonably small
capital for the conduct of its business and has, and will have, the
ability to pay its debts from time to time incurred in connection
therewith as such debts mature.
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4.2
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The
execution, delivery, and performance by the Guarantor of this
Guaranty do not and will not:
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(i)
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violate
any provision of, or require any filings, registration, consent or
approval under, any law, rule, regulation (including, without
limitation, Regulation U), order, writ, judgment, injunction,
decree, determination or award presently in effect having
applicability to the Guarantor or the Borrower;
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Guaranty by ABR Advisors, Inc.
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Page 2 of 11
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(ii) |
result
in a breach of or constitute a default or require any consent under
any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Guarantor is a party or by which
Guarantor or any of its properties may be bound or
affected;
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(iii)
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result
in, or require, the creation or imposition of any lien, security
interest or other encumbrance (other than as created hereunder),
upon or with respect to any of the properties now owned or
hereafter acquired by the Guarantor; or
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(iv)
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cause
the Guarantor to be in default under any such law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or
instrument.
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4.3
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The
Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and has the
legal power and authority to execute, deliver and fulfill its
obligations set forth in this Guaranty. The Guarantor has all
requisite corporate power to own and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted and is duly qualified to do business and in good standing
in such other jurisdictions where the failure to so qualify would
have a material adverse effect on the Guarantor’s business,
prospects, operations or financial condition.
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4.4
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This
Guaranty has been duly authorized by all necessary corporate action
and is a legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its
terms.
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4.5
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Any
and all financial statements and other financial data which have
previously been furnished to Lender with respect to Guarantor are
true and correct in all material respects, fairly, completely and
accurately representing the financial condition of Guarantor as of
the date thereof and, since the date thereof, there have been no
additional borrowings of Guarantor, nor has there been any material
adverse change in the financial condition of Guarantor; there are
no legal proceedings, material claims or demands pending against,
or to the best of Guarantor’s knowledge, threatened against
Guarantor or any of Guarantor’s assets; there are no federal
or state liens filed or threatened against Guarantor or any of
Guarantor’s assets; and Guarantor is not in default or
claimed default under any agreement for borrowed
money.
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4.6
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Guarantor
has reviewed and approved the Loan Documents to be signed by
Borrower in connection with the Loan, and each and every warranty
and representation made by Borrower in the Loan Documents is, to
the best of Guarantor’s knowledge, true and
correct.
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Guaranty by ABR Advisors, Inc. |
Page 3
of 11
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4.7
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Guarantor
shall, within five (5) business days after receipt thereof, deliver
to Lender copies of any notices of default served on such Guarantor
pursuant to the terms of any other material agreement to which such
Guarantor is a party.
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5.
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Primary Nature of Guaranty .
In giving this Guaranty, Guarantor hereby acknowledges that this
Guaranty is a guarantee of (i) performance by Borrower under the
Loan Documents; and (ii) payment and not of collection, and that
the liability of Guarantor hereunder is present, absolute,
unconditional, continuing, primary, direct and independent of the
obligations of Borrower. Lender shall not be required to pursue any
other remedies before invoking the benefits of this Guaranty,
including, without limitation, its remedies under the Loan
Documents. With regard to any rights which may accrue to Lender
under or in connection with the Loan Documents, Lender may, at its
option, look to Guarantor for the performance of the Guaranteed
Obligations to the extent provided herein, without having first
commenced any action or proceeding against Borrower or any other
guarantor or any other parties or other security, and without
having obtained any judgment against Borrower or against any other
guarantor. Enforcement of Lender’s rights against the
security given by Borrower for the Loan shall not impair the right
of Lender to enforce this Guaranty, Guarantor expressly agreeing
that any such action by Lender shall never operate as a release of
Guarantor’s liability hereunder. Guarantor shall be
conclusively bound, in any jurisdiction, by the judgment rendered
in any action by Lender against Borrower or against any other
guarantor, wherever instituted, as if Guarantor was a party to such
action, even if not actually joined as a party.
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6.
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Continuing Nature of Guaranty .
The liability of Guarantor shall remain and continue in full force
and effect notwithstanding:
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6.1
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The
non-liability of Borrower for any reason whatsoever for the payment
and performance of the Guaranteed Obligations or any part
thereof;
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6.2
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The
voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the property described in the Loan Documents,
marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment or any
similar proceeding, affecting Borrower or any of their
assets;
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6.3 |
The
assignment or transfer of the Notes or other Loan
Documents;
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