UNCONDITIONAL GUARANTY
AGREEMENT
This Guaranty
Agreement (this “ Guaranty ”) is made as of the
20th day of November, 2006, by Schonfeld Group Holdings LLC, a
Delaware limited liability company (“ Guarantor
”), in favor of each of SAI Holdings, Inc., a Texas
corporation (“ SAI ”), and Penson Financial
Services, Inc., a North Carolina corporation (“ PFSI
” and together with SAI, the “ Companies
”).
(1) Schonfeld
Securities, LLC, a New York limited liability company (“
SSLLC ”), an affiliate of Guarantor, is entering into
concurrently herewith, that certain Asset Purchase Agreement, by
and between SSLLC and SAI dated as of even date herewith (as
modified, supplemented, or amended from time to time, the “
Asset Purchase Agreement ”).
(2) Schonfeld
Tools, LLC, a Delaware limited liability company (“
Tools ”), an affiliate of Guarantor, is entering into
concurrently herewith, that certain Services Agreement, by and
between Tools and PFSI, dated as of even date herewith (as
modified, supplemented or amended from time to time, the “
Services Agreement ”).
(3) Schon-EX,
LLC, a New York limited liability company (“ Schon-EX
”), an affiliate of Guarantor, is entering into concurrently
herewith, that certain Execution Services Agreement, by and between
Schon-EX and PFSI, dated as of even date herewith (as modified,
supplemented or amended from time to time, the “ Execution
Agreement ”).
(4) Those
Introducing Brokers listed on Annex A to the Asset Purchase
Agreement are entering into concurrently herewith separate Clearing
Agreements, by and between each such Introducing Broker and PFSI,
each dated as of even date herewith (each as modified, supplemented
or amended, a “ Clearing Agreement ” and
collectively, the “ Clearing Agreements
”).
(5) Guarantor,
as an affiliate and/or equity holder of each of SSLLC, Tools,
Schon-EX and certain of the Introducing Broker, will receive a
substantial benefit from the execution of the Services Agreement,
the Execution Agreement and the Clearing Agreements and the closing
of the transactions contemplated by the Asset Purchase
Agreement.
(6) Unless
the context indicates otherwise, any capitalized term used and not
defined in this Guaranty has the meaning given to such term in the
Asset Purchase Agreement.
For good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to PFSI to enter
into the Services Agreement, the Execution Agreement and each of
the Clearing Agreements and to SAI to enter into and to close the
transactions contemplated by the Asset Purchase Agreement,
Guarantor hereby absolutely, unconditionally and irrevocably
guarantees: (i) to PFSI, the full and complete payment and
performance of the obligations of each of Tools and Schon-EX under
the Services Agreement and the Execution Agreement, and the full
and complete performance by the Introducing Brokers of the
obligations of the Introducing Brokers set forth in
Sections 1(e), 11(b), 17 and 20(d) of the Clearing Agreements;
and (ii) to SAI, the full and complete payment and performance
of the obligations of SSLLC under the Asset Purchase Agreement (all
of such agreements collectively
referred to
herein as the “ Transaction Documents ”),
however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, due or to become
due, now existing or hereafter contracted or acquired, and all
modifications, extensions and renewals of each of them as described
below in this Guaranty, and specifically excluding, for purposes of
clarification, any trading losses incurred by the Introducing
Brokers under the Clearing Agreements (collectively called the
“ Guaranteed Obligations ”), upon the following
terms and conditions:
1. Guaranty of
Payment and Performance. Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to the Companies the
full, complete and timely payment and/or performance, as the case
may be, of all of the Guaranteed Obligations. This Guaranty is a
continuing and unconditional guaranty of payment and/or
performance, as the case may be, and not of collection. This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment or performance of the
Guaranteed Obligations is rescinded, avoided or for any other
reason invalidates any previous satisfaction of such obligations of
SSLLC, Tools, the Introducing Brokers or Schon-EX and such payment
or performance shall remain unsatisfied as though such obligation
had never been satisfied. Except to the extent the provisions of
this Guaranty give the Companies additional rights, this Guaranty
shall not be deemed to supersede or replace any other guaranties
given to the Companies by Guarantor.
2. Primary
Liability of Guarantor .
(a) This Guaranty
is an absolute, irrevocable and unconditional guaranty of payment
and/or performance, as the case may be. Guarantor shall be liable
for the payment and/or performance of the Guaranteed Obligations,
as set forth in this Guaranty, as a primary obligor. This Guaranty
shall be effective as a waiver of, and Guarantor hereby expressly
waives, any and all rights to which Guarantor may otherwise have
been entitled under any suretyship laws in effect from time to
time.
(b) In the event
of a default by any or all of SSLLC, Tools, the Introducing Brokers
and/or Schon-EX in payment or performance of the Guaranteed
Obligations, or any part thereof, when such payment or performance
becomes due, either by its terms or as the result of the exercise
of any power to accelerate, Guarantor shall, on demand and without
presentment, protest, notice of protest, further notice of
nonpayment or of dishonor or of default or nonperformance, or
notice of acceleration or of intent to accelerate, or any other
notice whatsoever, without any notice having been given to
Guarantor previous to such demand of the acceptance by the
Companies of this Guaranty, and without any notice having been
given to Guarantor previous to such demand, all such notices being
hereby
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