This continuing
Unconditional Guaranty (“Guaranty”) is entered into as
of March 29, 2006, by Gain Holdings, LLC (“Guarantor”),
in favor of Silicon Valley Bank (“SVB”), as agent for
the Lenders (“Agent”) and JPMorgan Chase Bank, N.A.
(“JPMorgan”) (SVB and JPMorgan are each a
“Lender”, and collectively the
“Lenders”).
A. Concurrently
herewith, Agent, Lenders and Gain Capital Holdings, Inc., Inc., a
Delaware corporation (“Borrower”), are entering into
that certain Loan and Security Agreement dated as of March 29,
2006 (as amended, restated, or otherwise modified from time to
time, the “Loan Agreement”) pursuant to which Lenders
have agreed to make certain advances of money and to extend certain
financial accommodations to Borrower (collectively, the
“Loans”), subject to the terms and conditions set forth
therein. Capitalized terms used but not otherwise defined herein
shall have the meanings given them in the Loan
Agreement.
B. In
consideration of the agreement of Lenders to make the Loans to
Borrower under the Loan Agreement, Guarantor is willing to guaranty
the full payment and performance by Borrower of all of its
obligations thereunder and under the other Loan Documents, all as
further set forth herein.
C. Guarantor
is a wholly-owned subsidiary of Borrower and will obtain
substantial direct and indirect benefit from the Loans made by
Lenders to Borrower under the Loan Agreement.
Now,
Therefore, to
induce Agent and Lenders to enter into the Loan Agreement, and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound,
Guarantor hereby represents, warrants, covenants and agrees as
follows:
1.1
Unconditional Guaranty of Payment. In consideration of the
foregoing, Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Agent and Lenders the prompt and
complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all Obligations.
Guarantor agrees that it shall execute such other documents or
agreements and take such action as Agent and any Lender shall
reasonably request to effect the purposes of this Guaranty. The
obligations of Guarantor hereunder shall not be limited or
otherwise affected whatsoever by Section 5.10 of the Loan
Agreement.
1.2
Separate Obligations. These obligations are independent of
Borrower’s obligations and separate actions may be brought
against Guarantor (whether action is brought against Borrower or
whether Borrower is joined in the action).
Section 2.
Representations and Warranties.
Guarantor
hereby represents and warrants that:
(a) Guarantor
(i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware; (ii) is duly qualified to do business and is in good
standing in every jurisdiction where the nature of its business
requires it to be so qualified (except where the failure to so
qualify would not have a material adverse effect on
Guarantor’s condition, financial or otherwise, or on
Guarantor’s ability to pay or perform the obligations
hereunder); and (iii) has all requisite power and authority to
execute and deliver this Guaranty and each Loan Document executed
and delivered by Guarantor pursuant to the Loan Agreement or this
Guaranty and to perform its obligations thereunder and
hereunder.
(b) The
execution, delivery and performance by Guarantor of this Guaranty
(i) are within Guarantor’s powers and have been duly
authorized by all necessary action; (ii) do not contravene
Guarantor’s charter documents or any law or any contractual
restriction binding on or affecting Guarantor or by which
Guarantor’s property may be affected; (iii) do not
require any authorization or approval or other action by, or any
notice to or filing with, any governmental authority or any other
Person under any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Guarantor is a party or by
which Guarantor or any of its property is bound, except such as
have been obtained or made; and (iv) do not result in the
imposition or creation of any Lien upon any property of
Guarantor.
(c) This
Guaranty is a valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms, except
as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws relating to or affecting the rights of creditors
generally.
(d) There
is no action, suit or proceeding affecting Guarantor pending or
threatened before any court, arbitrator, or governmental authority,
domestic or foreign, which may have a material adverse effect on
the ability of Guarantor to perform its obligations under this
Guaranty.
(e) Guarantor’s
obligations hereunder are not subject to any offset or defense
against Agent, any Lender, or Borrower of any kind.
(f) The
most recent audited and unaudited financial statements of
Guarantor, copies of which have been furnished to Agent, fairly
present the financial position and results of operations for
Guarantor for the dates and periods purported to be covered
thereby, all in accordance with GAAP, and there has been no
material adverse change in the financial position or operations of
Guarantor since the date of such financial statements.
(g) To
ensure the legality, validity, enforceability or admissability into
evidence of this Guaranty in each of the jurisdictions in which
Guarantor is incorporated or organized and any jurisdiction in
which Guarantor conducts business, it is not necessary that (i)
this Guaranty be filed or recorded with any court or other
authority in such jurisdiction, (ii) any other filings,
notices, authorizations, approvals be obtained or other actions
taken, or (iii) any stamp or similar tax be paid on or with
respect to this Guaranty, or, if any of the foregoing actions are
necessary, they have been duly taken.
(h) Neither
Guarantor nor its property has any immunity from jurisdiction of
any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under applicable law.
(i) The
incurrence of Guarantor’s obligations under this Guaranty
will not cause Guarantor to (i) become insolvent; (ii) be
left with unreasonably small capital for any business or
transaction in which Guarantor is presently engaged or plans to be
engaged; or (iii) be unable to pay its debts as such debts
mature.
(j) Guarantor
covenants, warrants, and represents to Agent and each Lender that
all representations and warranties contained in this Guaranty shall
be true at the time of Guarantor’s execution of this
Guaranty, and shall continue to be true so long as this Guaranty
remains in effect. Guarantor expressly agrees that any
misrepresentation or breach of any warranty whatsoever contained in
this Guaranty shall be deemed material.
Section 3.
General Waivers. Guarantor waives:
(a) Any
right to require Agent and/or Lenders to (i) proceed against
Borrower or any other person; (ii) proceed against or exhaust
any security or (iii) pursue any other remedy. Agent or any
Lender may exercise or not exercise any right or remedy it has
against Borrow
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