UNCONDITIONAL GUARANTY
AGREEMENT
This Unconditional
Guaranty Agreement (this “ Guaranty ”) is
made as of the 20th day of November, 2006, by Schonfeld Group
Holdings LLC, a Delaware limited liability company (“
Group ”), Schonfeld Securities, LLC, a New York
limited liability company (“ SSLLC ”),
and Steven B. Schonfeld, in his individual capacity (“
Schonfeld ”, and together with Group and SSLLC,
“ Guarantors ”), in favor of Penson
Financial Services, Inc., a North Carolina corporation (“
PFSI ”).
(A) Schonfeld
& Company LLC, a New York limited liability company (“
SchonCo ”), is entering into concurrently
herewith a Fully Disclosed Clearing Agreement by and between
SchonCo and PFSI dated as of even date hereof (the “
SchonCo Clearing Agreement ”).
(B) Schonfeld
Securities, LLC, a New York limited liability company (“
SSLLC ”), is entering into concurrently
herewith a Fully Disclosed Clearing Agreement by and between SSLLC
and PFSI dated as of even date hereof (the “ SSLLC
Clearing Agreement ”).
(C) Opus
Trading Fund LLC, a Delaware limited liability company (“
Opus ”), and Quantitative Trading Strategies
LLC, Delaware limited liability company (“ QTS
”, and together with Opus, " Payors ”),
each affiliates of SchonCo, SSLLC and Guarantors, are entering into
concurrently herewith a Termination / Compensation Payment
Agreement by and among Payors and PFSI dated as of the date hereof
(the “ Termination / Compensation Payment
Agreement ”), pursuant to which Payors have agreed to
make certain payments to PFSI in the event that SchonCo terminates
the SchonCo Clearing Agreement at any time after the fourth
anniversary of the Conversion Date and prior to the end of the
Initial Term of the SchonCo Clearing Agreement or SSLLC sells
certain of its assets prior to the end of the Initial Term of the
SSLLC Clearing Agreement.
(D) Guarantors,
affiliates and/or equity holders of each of SchonCo, SSLLC and
Payors, will receive a substantial benefit from the right granted
to SchonCo by PFSI to terminate the SchonCo Clearing Agreement
prior to the expiration of the Initial Term and the right granted
to SSLLC by PFSI to sell certain of its assets prior to the
expiration of the Initial Term and PFSI would not grant such rights
to SchonCo or SSLLC but for the commitments made by Payors as set
forth in the Termination / Compensation Payment Agreement and the
guaranty of Guarantors set forth in this Guaranty.
(E) Unless
the context indicates otherwise, any capitalized term used and not
defined in this Guaranty has the meaning ascribed to such term in
the SchonCo Clearing Agreement or the SSLLC Clearing Agreement, as
applicable.
For good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to cause PFSI to
enter into the SchonCo Clearing Agreement, the SSLLC Clearing
Agreement and the Termination / Compensation Payment Agreement,
Guarantors hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantee to PFSI the full and
complete payment of the obligations of Payors pursuant to
the
Termination /
Compensation Payment Agreement (the “ Guaranteed
Obligations ”), upon the following terms and
conditions:
1.
Guaranty of Payment. Guarantors hereby, jointly and
severally, absolutely, unconditionally and irrevocably guarantee to
PFSI the full, complete and timely payment of the Guaranteed
Obligations. This Guaranty is a continuing and unconditional
guaranty of payment 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 of the Guaranteed Obligations is rescinded,
avoided or for any other reason invalidates any previous
satisfaction of such obligations of Payors and such payment shall
remain unsatisfied as though such obligation had never been
satisfied. Except to the extent the provisions of this Guaranty
give PFSI additional rights, this Guaranty shall not be deemed to
supersede or replace any other guaranties given to PFSI by
Guarantors.
2.
Primary Liability of Guarantors.
(a) This
Guaranty is an absolute, irrevocable and unconditional guaranty of
payment. Guarantors shall be liable for the payment of the
Guaranteed Obligations, as set forth in this Guaranty, as primary
obligors. This Guaranty shall be effective as a waiver of, and
Guarantors hereby expressly waive, any and all rights to which
Guarantors may otherwise have been entitled under any suretyship
laws in effect from time to time.
(b) In the
event of a default by Payors in payment of the Guaranteed
Obligations, or any part thereof, when such payment becomes due,
Guarantors shall, on demand and without presentment, protest,
notice of protest, further notice of nonpayment or of dishonor or
of default or nonperformance, or any other notice whatsoever,
without any notice having been given to Guarantors previous to such
demand of the acceptance by PFSI of this Guaranty, and without any
notice having been given to Guarantors previous to such demand, all
such notices being hereby waived by Guarantors, perform its/his
obligation to make payment hereunder and it shall not be necessary
for PFSI in order to enforce such payment by Guarantors, first to
institute suit or pursue or exhaust any rights or remedies against
Payors or others liable for such payment, or to enforce any rights
against any security that shall ever h
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