EXHIBIT 10.90
GUARANTY
(FIRST INVESTORS (VERMONT) HOLDINGS, INC.)
WHEREAS, FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas corporation,
("BORROWER") has entered into that certain Credit Agreement dated as of December
22, 2000, among Borrower, the lenders party thereto (individually a "LENDER" and
collectively, "LENDERS"), BANK OF AMERICA, N.A., as administrative agent for
itself and the other Lenders ("ADMINISTRATIVE AGENT") and BANC OF AMERICA
SECURITIES LLC, as lead arranger and book manager (such Credit Agreement, as it
may hereafter be amended or otherwise modified from time to time, being
hereinafter referred to as the "CREDIT AGREEMENT" and capitalized terms not
otherwise defined herein shall have the same meaning as set forth in the Credit
Agreement);
WHEREAS, the execution of this Guaranty is required by the Credit
Agreement as a condition to making extensions of credit thereunder from and
after the Closing Date;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned (the "GUARANTOR") hereby
irrevocably and unconditionally guarantees to the Administrative Agent and
Lenders the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined) upon the following terms:
1. The term "GUARANTEED INDEBTEDNESS", as used herein means all of the
"Obligations", as defined in the Credit Agreement and shall include any and all
post-petition interest and expenses (including reasonable attorneys' fees)
whether or not allowed under any bankruptcy, insolvency, or other similar law;
PROVIDED that, notwithstanding anything to the contrary contained in this
Guaranty, the Guaranteed Indebtedness shall be limited, with respect to
Guarantor to an aggregate amount equal to the greatest amount that would not
render Guarantor's indebtedness, liabilities or obligations hereunder subject to
avoidance under Sections 544, 548 or 550 of the United States Bankruptcy Code or
subject to being set aside or annulled under any applicable state law relating
to fraud on creditors; PROVIDED, FURTHER, that, for purposes of the immediately
preceding clauses, it shall be presumed that the Guaranteed Indebtedness for
Guarantor hereunder does not equal or exceed any aggregate amount which would
render Guarantor's indebtedness, liabilities or obligations hereunder subject to
being so avoided, set aside or annulled, and the burden of proof to the contrary
shall be on the party asserting to the contrary. Subject to but without limiting
the generality of the foregoing sentence, the provisions of this Guaranty are
severable and, in any legally binding action or proceeding involving any state
corporate law or any bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights and general principles of
equity, if the indebtedness, liabilities or obligations of Guarantor hereunder
would otherwise be held or determined to be void, invalid or unenforceable on
account of the amount of its indebtedness, liabilities or obligations hereunder,
then, notwithstanding any other provision of this Guaranty to the contrary, the
amount of such indebtedness, liabilities or obligations shall, for purposes of
determining Guarantor's obligations under this Guaranty, without any further
action by Guarantor or any other Person, be automatically limited and reduced to
the greatest amount which is valid and enforceable as determined in such action
or proceeding.
2. This instrument shall be an absolute, continuing, irrevocable and
unconditional guaranty of payment and not a guaranty of collection, and
Guarantor shall remain liable on its
GUARANTY (FIVH) - Page 1
obligations hereunder until the payment and performance in full of the
Guaranteed Indebtedness. No set-off, counterclaim, recoupment, reduction, or
diminution of any obligation, or any defense of any kind or nature which
Borrower may have against Administrative Agent, any Lender or any other party,
or which Guarantor may have against Borrower, Administrative Agent, any Lender
or any other party, shall, to the extent permitted by applicable law, be
available to, or asserted by, Guarantor against Administrative Agent, any Lender
or any subsequent holder of the Guaranteed Indebtedness or any part thereof or
against payment of the Guaranteed Indebtedness or any part thereof.
3. If Guarantor becomes liable for any indebtedness owing by Borrower to
Administrative Agent or any Lender by endorsement or otherwise, other than under
this Guaranty, such liability shall not be in any manner impaired or affected
hereby, and the rights of Administrative Agent and Lenders hereunder shall be
cumulative of any and all other rights that Administrative Agent and Lenders may
ever have against Guarantor. The exercise by Administrative Agent and Lenders of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
4. Upon the occurrence of an Event of Default by Borrower in payment or
performance of the Guaranteed Indebtedness, or any part thereof, when such
Guaranteed Indebtedness becomes due, whether by its terms, by acceleration, or
otherwise, the Guarantor shall promptly pay the amount due thereon to
Administrative Agent and Lenders without notice or demand in lawful currency of
the United States of America and it shall not be necessary for Administrative
Agent or any Lender, in order to enforce such payment by Guarantor, first to
institute suit or exhaust its remedies against Borrower or others liable on such
Guaranteed Indebtedness, or to enforce any rights against any collateral which
shall ever have been given to secure such Guaranteed Indebtedness
notwithstanding any applicable law to the contrary. In the event such payment is
made by Guarantor, then Guarantor shall be subrogated to the rights then held by
Administrative Agent and any Lender with respect to the Guaranteed Indebtedness
to the extent to which the Guaranteed Indebtedness was discharged by Guarantor
and, in addition, upon payment by Guarantor of any sums to Administrative Agent
and any Lender hereunder, all rights of Guarantor against Borrower, any other
guarantor or any Collateral arising as a result therefrom by way of right of
subrogation, reimbursement, or otherwise shall in all respects be subordinate
and junior in right of payment to the prior indefeasible payment in full of the
Guaranteed Indebtedness and no such right or remedy of subrogation,
reimbursement or otherwise shall be exercised or otherwise entered unless and
until the Guaranteed Indebtedness has been indefeasibly paid in full.
5. If acceleration of the time for payment of any amount payable by
Borrower under the Guaranteed Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower, all such amounts otherwise subject to
acceleration under the terms of the Guaranteed Indebtedness shall, to the extent
permitted by applicable law, nonetheless be payable by Guarantor hereunder
forthwith on demand by Administrative Agent or any Lender.
6. Guarantor hereby agrees that its obligations under this Guaranty shall,
to the extent permitted by applicable law, not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
occurrences or events, whether or not with notice to or the consent of
Guarantor: (a) the
GUARANTY (FIVH) - Page 2
taking or accepting of collateral as security for any or all of the Guaranteed
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Guaranteed Indebtedness;
(b) any partial release of the liability of Guarantor hereunder, or the full or
partial release of any other guarantor from liability for any or all of the
Guaranteed Indebtedness; (c) any disability of Borrower, or the dissolution,
insolvency, or bankruptcy of Borrower, Guarantor, or any other party at any time
liable for the payment of any or all of the Guaranteed Indebtedness; (d) any
renewal, extension, modification, waiver, amendment, or rearrangement of any or
all of the Guaranteed Indebtedness or any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Indebtedness; (e) any adjustment, indulgence, forbearance, waiver, or compromise
that may be granted or given by Administrative Agent or any Lender to Borrower,
Guarantor, or any other party ever liable for any or all of the Guaranteed
Indebtedness; (f) any neglect, delay, omission, failure, or refusal of
Administrative Agent or any Lender to take or prosecute any action for the
collection of any of the Guaranteed Indebtedness or to foreclose or take or
prosecute any action in connection with any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Indebtedness; (g) the unenforceability or invalidity of any or all of the
Guaranteed Indebtedness or of any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Guaranteed Indebtedness;
(h) any payment by Borrower or any other party to Administrative Agent or any
Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Administrative Agent or any Lender is
required to refund any payment or pay the amount thereof to someone else; (i)
the settlement or compromise of any of the Guaranteed Indebtedness; (j) the
non-perfection of any security interest or lien securing any or all of the
Guaranteed Indebtedness; (k) any impairment of any collateral securing any or
all of the Guaranteed Indebtedness; (l) the failure of Administrative Agent or
any Lender to sell any collateral securing any or all of the Guaranteed
Indebtedness in a commercially reasonable manner or as otherwise required by
law; (m) any change in the corporate existence, structure, or ownership of
Borrower; or (n) any other circumstance which might otherwise constitute a
defense available to, or discharge of, Borrower or Guarantor.
7. Guarantor represents and warrants to Administrative Agent and Lenders
as follows:
(a) All representations and warranties in the Credit Agreement
relating to it are true and correct in all material respects as of the date
hereof and on each date the representations and warranties hereunder are
restated pursuant to any of the Loan Documents with the same force and effect as
if such representations and warranties had been made on and as of such date
except to the extent that such representations and warranties relate
specifically to another date or to the extent that a fact, event or circumstance
has occurred that makes such representation or warranty untrue but which is not
prohibited to occur or exist (or which does not cause an Event of Default) under
the Loan Documents.
(b) The value of the consideration received and to be received by it
as a result of Borrower, Administrative Agent and Lenders entering into the
Credit Agreement and its executing and delivering this Guaranty and the other
Loan Documents to which it is a party is reasonably worth at least as much as
its liability and obligation hereunder and thereunder, and such liability and
obligation and the Credit Agreement have benefitted and may reasonably be
expected to benefit it directly or indirectly.
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(c) It has, independently and without reliance upon Administrative
Agent or any Lender and based upon such documents and information as it has
deemed appropriate, made its own analysis and decision to enter into the Loan
Documents to which it is a party.
(d) It has adequate means to obtain from Borrower on a continuing
basis information concerning the financial condition and assets of Borrower and
it is not relying upon Administrative Agent or the Lenders to provide (and
neither the Administrative Agent nor any Lender shall have any duty to provide)
any such information to it either now or in the future.
8. Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding or any Lender has any commitment
under the Credit Agreement, it will comply with all covenants set forth in the
Credit Agreement specifically applicable to it, the terms of which are
incorporated herein by reference.
9. When an Event of Default exists, Administrative Agent and Lenders shall
have the right to set-off and apply against this Guaranty or the Guaranteed
Indebtedness or both, at any time and without notice to Guarantor, any and all
deposits (general or special, time or demand, provisional or final, but
excluding any account established by Guarantor as a fiduciary for another party)
or other sums at any time credited by or owing from Administrative Agent and
Lenders to Guarantor whether or not the Guaranteed Indebtedness is then due and
irrespective of whether or not Administrative Agent or any Lender shall have
made any demand under this Guaranty. Each Lender agrees promptly to notify the
Borrower (with a copy to the Administrative Agent) after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights and remedies of
Administrative Agent and the Lenders hereunder are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which
Administrative Agent or any Lender may have.
10. (a) Guarantor hereby agrees that the Subordinated Indebtedness (as
defined below) shall be subordinate and junior in right of payment to the prior
indefeasible payment in full of all Guaranteed Indebtedness as herein provided.
The Subordinated Indebtedness shall not be payable, and no payment of principal,
interest or other amounts on account thereof, and no property or guarantee of
any nature to secure or pay the Subordinated Indebtedness or any part thereof
shall be made or given, directly or indirectly by or on behalf of any Debtor
(hereafter defined) or received, accepted, retained or applied by Guarantor
unless and until the Guaranteed Indebtedness shall have been indefeasibly paid
in full in cash; EXCEPT THAT prior to occurrence of an Event of Default,
Guarantor shall have the right to receive payments on the Subordinated
Indebtedness made in the ordinary course of business unless, and except to the
extent that, the payment or receipt of such payments is prohibited or otherwise
restricted by the Credit Agreement or another Loan Document other than this
Guaranty. After the occurrence and during the continuance of an Event of
Default, no payments of principal or interest may be made or given, directly or
indirectly, by or on behalf of any Debtor or received, accepted, retained or
applied by Guarantor unless and until the Guaranteed Indebtedness shall have
been indefeasibly paid in full in cash. If any sums shall be paid to Guarantor
by any Debtor or any other Person on account of the Subordinated Indebtedness
when such payment is not permitted hereunder, such sums shall be held in trust
by Guarantor for the benefit of Administrative Agent and the Lenders and shall
forthwith be paid to Administrative Agent without
GUARANTY (FIVH) - Page 4
affecting the liability of Guarantor under this Guaranty and may be applied by
Administrative Agent against the Guaranteed Indebtedness in accordance with the
Credit Agreement. Upon the request of Administrative Agent, Guarantor shall
execute, deliver, and endorse to Administrative Agent such documentation as
Administrative Agent may request to perfect, preserve, and enforce its rights
hereunder. For purposes of this Guaranty and with respect to Guarantor, the term
"SUBORDINATED INDEBTEDNESS" means all indebtedness, liabilities, and obligations
of Borrower or any other Loan Party other than Guarantor (Borrower and such Loan
Parties herein the "DEBTORS") to Guarantor, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or
are direct, indirect, contingent, primary, secondary, several, joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contract, open account, or
otherwise, and irrespective of the Person or Persons in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor.
(b) Guarantor agrees that any and all Liens (including any judgment
liens), upon any Debtor's assets securing payment of any Subordinated
Indebtedness shall be and remain inferior and subordinate to any and all Liens
upon any Debtor's assets securing payment of the Guaranteed Indebtedness or any
part thereof, regardless of whether such Liens in favor of Guarantor,
Administrative Agent or any Lender presently exist or are hereafter created or
attached. Without the prior written consent of Administrative Agent, Guarantor
shall not (i) file suit against any Debtor or exercise or enforce any other
creditor's right it may have against any Debtor, or (ii) foreclose, repossess,
sequester, or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including without limitation the commencement of, or
joinder in, any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any obligations of any Debtor to Guarantor or
any Liens held by Guarantor on assets of any Debtor.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving any
Debtor as debtor, Administrative Agent shall have the right to prove and vote
any claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions, and
payments made in respect of the Subordinated Indebtedness until the Guaranteed
Indebtedness has been indefeasibly paid in full in cash. Administrative Agent
may apply any such dividends, distributions, and payments against the Guaranteed
Indebtedness in accordance with the Credit Agreement.
(d) Guarantor agrees that all promissory notes, accounts receivable,
ledgers, records, or any other evidence of Subordinated Indebtedness shall
contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under the terms of this Guaranty.
11. No amendment or waiver of any provision of this Guaranty or consent to
any departure by Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by Administrative Agent and Required Lenders
except as otherwise provided in the Credit Agreement. To the extent permitted by
applicable law, no failure on the part of Administrative Agent or any Lender to
exercise, and no delay in exercising, any right, power, or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of
GUARANTY (FIVH) - Page 5
any other right, power, or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
12. To the extent permitted by applicable law, any acknowledgment or new
promise, whether by payment of principal or interest or otherwise and whether by
Borrower or others (including Guarantor), with respect to any of the Guaranteed
Indebtedness shall, if the statute of limitations in favor of Guarantor against
Administrative Agent or any Lender shall have commenced to run, toll the running
of such statute of limitations and, if the period of such statute of limitations
shall have expired, prevent the operation of such statute of limitations.
13. This Guaranty is for the benefit of Administrative Agent and the
Lenders and their successors and assigns, and in the event of an assignment of
the Guaranteed Indebtedness, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty is binding not only on
Guarantor, but on Guarantor's successors and assigns.
14. Guarantor recognizes that Administrative Agent and the Lenders are
relying upon this Guaranty and the undertakings of Guarantor hereunder and under
the other Loan Documents to which each is a party in making extensions of credit
to Borrower under the Credit Agreement and further recognizes that the execution
and delivery of this Guaranty and the other Loan Documents to which Guarantor is
a party is a material inducement to Administrative Agent and the Lenders in
entering into the Credit Agreement and continuing to extend credit thereunder.
Guarantor hereby acknowledges that there are no conditions to the full
effectiveness of this Guaranty or any other Loan Document to which it is a
party.
15. Any notice or demand to Guarantor under or in connection with this
Guaranty or any other Loan Document to which it is a party shall be deemed
effective if given to Guarantor, at the address of the Borrower and/or in care
of Borrower in accordance with the notice provisions in the Credit Agreement.
16. Guarantor shall, jointly and severally, pay on demand all reasonable
attorneys' fees and all other reasonable costs and expenses incurred by
Administrative Agent and Lenders in connection with the administration,
enforcement, or collection of this Guaranty.
17. Guarantor hereby waives promptness, diligence, notice of any default
under the Guaranteed Indebtedness, demand of payment, notice of acceptance of
this Guaranty, presentment, notice of protest, notice of dishonor, notice of the
incurring by Borrower of additional indebtedness, and all other notices and
demands with respect to the Guaranteed Indebtedness and this Guaranty.
18. Guarantor agrees that Administrative Agent and the Lenders may
exercise any and all rights granted to any of them under the Credit Agreement
and the other Loan Documents without affecting the validity or enforceability of
this Guaranty.
19. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR,
ADMINISTRATIVE AGENT AND LENDERS WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND SUPERSEDES
GUARANTY (FIVH) - Page 6
ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS
INTENDED BY GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS AS A FINAL AND COMPLETE
EXPRESSION OF THE TERMS OF THIS GUARANTY, AND NO COURSE OF DEALING AMONG
GUARANTOR, ADMINISTRATIVE AGENT AND THE LENDERS, NO COURSE OF PERFORMANCE, NO
TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE
ARE NO ORAL AGREEMENTS AMONG GUARANTOR, ADMINISTRATIVE AGENT AND THE LENDERS.
20. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
GUARANTY (FIVH) - Page 7
EXECUTED as of the 22nd day of December, 2000.
GUARANTOR:
FIRST INVESTORS (VERMONT)
HOLDINGS, INC.,
a Vermont corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
By:_______________________________________
Name:_____________________________________
Title:____________________________________
GUARANTY (FIVH) - Page 8
