Exhibit 10.140
|
|
Subsidiary Guaranty Agreement
|
|
|
|
|
|
Dated as of September 12, 2007
|
|
|
|
|
Re:
|
$5,000,000 12.75% Senior Subordinated
Notes,
due September 12, 2017
$318,750 14.75% Senior Subordinated Paid-In-Kind Notes,
due September 12, 2017
of
First Investors Financial Services Group, Inc.
|
TABLE OF
CONTENTS
(Not a part of the
Agreement)
|
Section 1.
|
Definitions.
|
2
|
|
|
|
|
|
Section 2.
|
Guaranty of Notes and
Note Purchase Agreement
|
2
|
|
|
|
|
|
Section 3.
|
Guaranty of Payment and
Performance
|
3
|
|
|
|
|
|
Section 4.
|
General Provisions
Relating to the Guaranty.
|
3
|
|
|
|
|
|
Section 5.
|
Representations and
Warranties of the Guarantors.
|
8
|
|
|
|
|
|
Section 6.
|
Amendments, Waivers and
Consents.
|
10
|
|
|
|
|
|
Section 7.
|
Notices.
|
11
|
|
|
|
|
|
Section 8.
|
Miscellaneous.
|
11
|
ATTACHMENTS TO
SUBSIDIARY GUARANTY AGREEMENT:
|
Exhibit A
|
—
|
Guaranty
Supplement
|
i
SUBSIDIARY GUARANTY
AGREEMENT
|
Re:
|
$5,000,000 12.75% Senior Subordinated
Notes,
due September 12, 2017
$318,750 14.75% Senior Subordinated Paid-In-Kind Notes,
due September 12, 2017
of
First Investors Financial Services Group, Inc.
|
This SUBSIDIARY GUARANTY AGREEMENT dated as of
September 12, 2007 (this “ Guaranty ”) is
entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party
hereto by execution and delivery of a Subsidiary Guaranty
Supplement in substantially the form set forth as Exhibit A
hereto (a “ Guaranty
Supplement ”) (which parties are hereinafter referred
to individually as a “Guarantor” and collectively as
the “ Guarantors
”).
RECITALS
A.
Each Guarantor, directly or indirectly, is a subsidiary of First
Investors Financial Services Group, Inc., a corporation
organized under the laws of the State of Texas (the “
Company ”).
B.
The Company has entered into a Note Purchase Agreement dated as of
September 12, 2007 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the “
Note Purchase Agreement
”) between the Company and each of the purchasers named on
Schedule A attached to said Note Purchase Agreement (the
“ Note Purchasers
”), providing for, among other things, the issue and sale by
the Company to the Note Purchasers of (a) $5,000,000 aggregate
principal amount of its 12.75% Senior Subordinated Notes, due
September 12, 2017 (the “ Senior Subordinated Notes ”) and
(b) $318,750 aggregate principal amount of its 14.75% Senior
Subordinated Paid-In-Kind Notes, due September 12, 2017 (the
“ Senior Subordinated PIK
Notes ”; the Senior Subordinated Notes together with
the Senior Subordinated PIK Notes are collectively referred to
herein as the “Notes”). The Note Purchasers together
with their respective successors and assigns are collectively
referred to herein as the “ Holders .”
C.
The Note Purchasers have required as a condition of their purchase
of the Notes that the Company cause each of the undersigned to
enter into this Guaranty and to cause each newly formed and
acquired Subsidiary to enter into a Guaranty Supplement, and the
Company has agreed to cause each of the undersigned to execute this
Guaranty and to cause each newly formed and acquired Subsidiary to
execute a Guaranty Supplement, in each case in order to induce the
Note Purchasers to purchase the Notes and thereby benefit the
Company and its Subsidiaries by providing funds to the Company for
the purposes described in Schedule 5.14 of the Note Purchase
Agreement.
Now, therefore, as required by Section 2.2
of the Note Purchase Agreement and in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as
follows:
SECTION 1.
DEFINITIONS.
Capitalized terms used herein shall have the
meanings set forth in the Note Purchase Agreement unless otherwise
defined herein.
SECTION 2.
GUARANTY
OF NOTES AND NOTE PURCHASE AGREEMENT
(a)
Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders:
(1) the full and prompt payment of the principal of, premium,
if any, and interest on the Notes from time to time outstanding, as
and when such payments shall become due and payable whether by
lapse of time, upon redemption or prepayment, by extension or by
acceleration or declaration or otherwise (including, to the extent
permitted by applicable law, interest due on overdue payments of
principal, or interest at the rate set forth in the Notes) in
Federal or other immediately available funds of the United States
of America which at the time of payment or demand therefore shall
be legal tender for the payment of public and private debts,
(2) the full and prompt performance and observance by the
Company of each and all of the obligations, covenants and
agreements required to be performed or owed by the Company under
the terms of the Notes and the Note Purchase Agreement and
(3) the full and prompt payment, upon demand by any Holder of
all costs and expenses, legal or otherwise (including reasonable
attorneys’ fees), if any, as shall have been expended or
incurred in the protection or enforcement of any rights, privileges
or liabilities in favor of the Holders under or in respect of the
Notes, the Note Purchase Agreement, or under this Guaranty or in
any consultation or action in connection therewith or
herewith.
(b)
To the extent that any Guarantor shall make a payment hereunder (a
“ Payment ”)
which, taking into account all other Payments previously or
concurrently made by any of the other Guarantors, exceeds the
amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate obligations satisfied by such
Payment in the same proportion as such Guarantor’s
“Allocable Amount” (as hereinafter defined) in effect
immediately prior to such Payment bore to the Aggregate Allocable
Amount (as hereinafter defined) of all of the Guarantors in effect
immediately prior to the making of such Payment, then such
Guarantor shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Guarantors for the
amount of such excess, pro rata based upon their respective
Allocable Amounts in effect immediately prior to such Payment;
provided that each Guarantor covenants and agrees that such
right of contribution and indemnification and any and all claims of
such Guarantor against any other Guarantor, any endorser or against
any of their property shall be junior and subordinate in right of
payment to the prior indefeasible final payment in cash in full of
all of the Notes and satisfaction by the Company of its obligations
under the Note Purchase Agreement and by the Guarantors of their
obligations under this Guaranty, and the Guarantors shall not take
any action to enforce such right of contribution and
indemnification, and the Guarantors shall not accept any payment in
respect of such right of contribution and indemnification, until
all of the Notes and all amounts payable by the Guarantors
hereunder have
2
indefeasibly been finally paid in cash in full
and all of the obligations of the Company under the Note Purchase
Agreement and of the Guarantors under this Guaranty have been
satisfied.
As
of any date of determination, (1) the “ Allocable Amount ” of any
Guarantor shall be equal to the maximum amount which could then be
claimed by the Holders under this Guaranty without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of
the United States Bankruptcy Code (11 U.S.C. Sec. 101 et. seq.) or
under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law; and
(2) the “ Aggregate
Allocable Amount ” shall be equal to the sum of each
Guarantor’s Allocable Amount.
This clause (b) is intended only to define
the relative rights of the Guarantors, and nothing set forth in
this clause (b) is intended to or shall impair the obligations
of the Guarantors, jointly and severally, to pay any amounts to the
Holders as and when the same shall become due and payable in
accordance herewith.
Each Guarantor acknowledges that the rights of
contribution and indemnification hereunder shall constitute an
asset in favor of any Guarantor to which such contribution and
indemnification is owing.
SECTION 3.
GUARANTY
OF PAYMENT AND PERFORMANCE
This is an irrevocable, absolute and
unconditional guarantee of payment and performance (but not of
collection) and each Guarantor hereby waives, to the fullest extent
permitted by law, any right to require that any action on or in
respect of any Note or the Note Purchase Agreement be brought
against the Company or any other Person or that resort be had to
any direct or indirect security for the Notes or for this Guaranty
or any other remedy. Any Holder may, at its option, proceed
hereunder against any Guarantor in the first instance to collect
monies when due, the payment of which is guaranteed hereby, without
first proceeding against the Company or any other Person and
without first resorting to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. The liability of
each Guarantor hereunder shall in no way be affected or impaired by
any acceptance by any Holder of any direct or indirect security
for, or other guaranties of, any Debt, liability or obligation of
the Company or any other Person to any Holder or by any failure,
delay, neglect or omission by any Holder to realize upon or protect
any such guarantees, Debt, liability or obligation or any notes or
other instruments evidencing the same or any direct or indirect
security therefore or by any approval, consent, waiver, or other
action taken, or omitted to be taken by any such Holder.
The
covenants and agreements on the part of the Guarantors herein
contained shall take effect as joint and several covenants and
agreements, and references to the Guarantors shall take effect as
references to each of them and none of them shall be released from
liability hereunder by reason of the guarantee ceasing to be
binding as a continuing security on any other of them.
SECTION 4.
GENERAL
PROVISIONS RELATING TO THE GUARANTY.
(a)
Each Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice to or
assent from any other Guarantor may, without in
3
any
manner affecting the liability of any Guarantor under this
Guaranty, and upon such terms and conditions as any such Holder or
Holders may deem advisable:
(1)
extend in whole or in part (by renewal or otherwise), modify,
change, compromise, release or extend the duration of the time for
the performance or payment of any Debt, liability or obligation of
the Company or of any other Person (including, without limitation,
any other Guarantor) secondarily or otherwise liable for any Debt,
liability or obligation of the Company on the Notes, or waive any
Default or Event of Default with respect thereto, or waive, modify,
amend or change any provision of the Note Purchase Agreement, any
other agreement or waive this Guaranty; or
(2)
sell, release, surrender, modify, impair, exchange or substitute
any and all property, of any nature and from whomsoever received,
held by, or for the benefit of, any such Holder as direct or
indirect security for the payment or performance of any Debt,
liability or obligation of the Company or of any other Person
(including, without limitation, any other Guarantor) secondarily or
otherwise liable for any Debt, liability or obligation of the
Company on the Notes; or
(3)
settle, adjust or compromise any claim of the Company against any
other Person (including, without limitation, any other Guarantor)
secondarily or otherwise liable for any Debt, liability or
obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any
such extension, renewal, change, sale, release, waiver, surrender,
exchange, modification, amendment, impairment, substitution,
settlement, adjustment or compromise and that the same shall be
binding upon it, and hereby waives, to the fullest extent permitted
by law, any and all defenses, counterclaims or offsets which it
might or could have by reason thereof, it being understood that
such Guarantor shall at all times be bound by this Guaranty and
remain liable hereunder.
(b)
Each Guarantor hereby waives, to the fullest extent permitted by
law:
(1)
notice of acceptance of this Guaranty by the Holders or of the
creation, renewal or accrual of any liability of the Company,
present or future, or of the reliance of such Holders upon this
Guaranty (it being understood that every Debt, liability and
obligation described in Section 2 hereof shall conclusively be
presumed to have been created, contracted or incurred in reliance
upon the execution of this Guaranty);
(2)
demand of payment by any Holder from the Company or any other
Person (including, without limitation, any other Guarantor)
indebted in any manner on or for any of the Debt, liabilities or
obligations hereby guaranteed; and
(3)
presentment for the payment by any Holder or any other Person of
the Notes or any other instrument, protest thereof and notice of
its dishonor to any party thereto and to such Guarantor.
The
obligations of each Guarantor under this Guaranty and the rights of
any Holder to enforce such obligations by any proceedings, whether
by action at law, suit in equity or otherwise, shall not be subject
to any reduction, limitation, impairment or termination,
whether
4
by
reason of any claim of any character whatsoever or otherwise and
shall not be subject to any defense, set-off, counterclaim (other
than any compulsory counterclaim), recoupment or termination
whatsoever.
(c)
The obligations of the Guarantors hereunder shall be binding upon
the Guarantors and their successors and assigns, and shall remain
in full force and effect irrespective of:
(1)
the genuineness, validity, regularity or enforceability of the
Notes, the Note Purchase Agreement, or any other agreement or any
of the terms of any thereof, the continuance of any obligation on
the part of the Company or any other Person on or in respect of the
Notes or under the Note Purchase Agreement, or any other agreement
or the power or authority or the lack of power or authority of the
Company to issue the Notes or the Company to execute and deliver
the Note Purchase Agreement, or any other agreement or of any
Guarantor to execute and deliver this Guaranty or to perform any of
its obligations hereunder or the existence or continuance of the
Company or any other Person as a legal entity; or
(2)
any default, failure or delay, willful or otherwise, in the
performance by the Company, any Guarantor or any other Person of
any obligations of any kind or character whatsoever under the
Notes, the Note Purchase Agreement, this Guaranty or any other
agreement; or
(3)
any creditors’ rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any Guarantor or any other
Person or in respect of the property of the Company, any Guarantor
or any other Person or any merger, consolidation, reorganization,
dissolution, liquidation, the sale of all or substantially all of
the assets of or winding up of the Company, any Guarantor or any
other Person; or
(4)
impossibility or illegality of performance on the part of the
Company, any Guarantor or any other Person of its obligations under
the Notes, the Note Purchase Agreement, this Guaranty or any other
agreements; or
(5)
in respect of the Company or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or
not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident,
labor disturbance, floods, droughts, embargoes, wars (whether or
not declared), civil commotion, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to obtain
materials, action of any Federal or state regulatory body or
agency, change of law or any other causes affecting performance, or
any other force majeure, whether or not beyond the control of the
Company or any other Person and whether or not of the kind
hereinbefore specified; or
(6)
any attachment, claim, demand, charge, Lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at
the source, by reason of any taxes, assessments, expenses, Debt,
obligations or liabilities of any character, foreseen or
unforeseen, and whether or not valid, incurred by or against the
Company, any Guarantor or any other Person or any
5
claims, demands, charges or Liens of any
nature, foreseen or unforeseen, incurred by the Company, any
Guarantor or any other Person, or against any sums payable in
respect of the Notes or under the Note Purchase Agreement, or this
Guaranty, so that such sums would be rendered inadequate or would
be unavailable to make the payments herein provided; or
(7)
any order, judgment, decree, ruling or regulation (whether or not
valid) of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or administrative
or regulatory agency of any thereof or any other action, happening,
event or reason whatsoever which shall delay, interfere with,
hinder or prevent, or in any way adversely affect, the performance
by the Company, any Guarantor or any other Person of
|
