GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of April 1, 2005 (as the same may be
amended, supplemented or otherwise modified from time to time, this "Agreement")
made by and among each of the Subsidiaries of FIND/SVP, INC., a New York
corporation (the "Borrower") listed on Schedule I hereto and such other
Subsidiaries which from time to time may become parties hereto (each such
subsidiary, individually, a "Guarantor" and, collectively, the "Guarantors") in
favor of FLEET NATIONAL BANK, a Bank of America company (together with its
affiliates, successors and assigns, the "Bank").
Reference is made to the Credit Agreement, dated as of March 31, 2005,
among the Borrower and the Bank (as amended, supplemented, restated or otherwise
modified from time to time, the "Loan Agreement"). Capitalized terms used herein
and not defined herein shall have the meanings assigned to such terms in the
Loan Agreement.
WHEREAS, the Bank has agreed to make Loans to the Borrower pursuant to,
and upon the terms and subject to the conditions specified in, the Loan
Agreement;
WHEREAS, each Guarantor is a director or indirect Subsidiary of the
Borrower;
WHEREAS, each Guarantor will receive substantial direct and indirect
benefits from the making of the Loans to the Borrower under the Loan Agreement;
and
WHEREAS, a condition precedent to the obligation of the Bank to make the
Loans to the Borrower under the Loan Agreement is that the Guarantors shall have
executed and delivered this Guarantee Agreement for the benefit of the Bank.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section 1. Guarantee; Fraudulent Transfer, etc.; Contribution
(a) Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety,
payment and performance of the Obligations. Each Guarantor further agrees that
the Obligations may be extended or renewed, in whole or in part, without notice
to or further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
(b) Anything in this Guarantee Agreement to the contrary
notwithstanding, (i) the obligations of each Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the greatest amount that would
not render such Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any provisions of applicable state law (collectively, the
"fraudulent transfer laws"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the fraudulent transfer laws (specifically excluding, however, any liabilities
of such Guarantor (A) in respect of debt owed or owing to the Borrower or
Affiliates of the Borrower to the extent that such debt would be discharged in
an amount equal to the amount paid by such Guarantor hereunder and (B) under any
guarantee of senior unsecured debt or Indebtedness subordinated in right of
payment to the Obligations, which guarantee contains a limitation as to maximum
amount similar to that set forth in this clause (i), pursuant to which the
liability of such Guarantor hereunder is included in the liabilities taken into
account in determining such maximum amount) and after giving effect as assets to
the value (as determined under the applicable provisions of the fraudulent
transfer laws) of any rights to subrogation, contribution, reimbursement,
indemnity or similar rights of such Guarantor pursuant to (1) applicable law or
(2) any agreement providing for an equitable allocation among such Guarantor and
other Affiliates of the Borrower of obligations arising under guarantees by such
parties (including the agreements in paragraph (c) of this Section) and (ii)
until all the Obligations have been paid in full, each of the Guarantors
expressly waives any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution or any other claim that it may now or hereafter have
against the Borrower, any other Loan Party, any other guarantor or any other
Person directly or contingently liable for the Obligations, or against or with
respect to the property of the Borrower, such other Loan Party, such other
guarantor or such other Person, arising from the existence or performance
hereof, and, in furtherance, and not in limitation, of the preceding waiver,
each of the Guarantors agrees that, in the event that any money or property
shall be transferred to the Bank by any Guarantor pursuant to this Guarantee
Agreement in reduction of the Obligations, such transfer shall be deemed to be a
contribution to the capital of the applicable Loan Party (in the case of the
transfer of property, in an amount equal to the fair market value of the
property so transferred) as of the date of such transfer, and any such transfer
shall not cause the Borrower to be a creditor of such Loan Party.
(c) In addition to all rights of indemnity and subrogation the
Guarantors may have under applicable law (but subject to this paragraph), the
Borrower agrees that (i) in the event a payment shall be made by any Guarantor
hereunder, the Borrower shall indemnify such Guarantor for the full amount of
such payment, and such Guarantor shall be subrogated to the rights of the person
to whom such payments shall have been made to the extent of such payment, and
(ii) in the event that any assets of any Guarantor shall be sold pursuant to any
Loan Document to satisfy any claim of the Bank, the Borrower shall indemnify
such Guarantor in an amount equal to the greater of the book value or the fair
market value of the assets so sold. Each Guarantor (a "contributing subsidiary
guarantor") agrees (subject to this paragraph) that, in the event a payment
shall be made by any other Guarantor hereunder or assets of any other Guarantor
shall be sold pursuant to any Loan Document to satisfy a claim of the Bank and
such other Guarantor (the "claiming subsidiary guarantor") shall not have been
fully indemnified by the Borrower as provided in this paragraph, the
contributing subsidiary guarantor shall indemnify the claiming subsidiary
guarantor in an amount equal to the amount of such payment or the greater of the
book value or the fair market value of such assets, as applicable, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
contributing subsidiary guarantor on the date hereof and the denominator shall
be the aggregate net worth of all the Guarantors on the date hereof (or, in the
case of any Guarantor becoming a party hereto pursuant to Section 21, the date
of the Supplement hereto executed and delivered by such Guarantor). Any
contributing subsidiary guarantor making any payment to a claiming subsidiary
guarantor pursuant to this paragraph shall be subrogated to the rights of such
claiming subsidiary guarantor under this paragraph to the extent of such
payment. Notwithstanding any provision of this paragraph to the contrary, all
rights of the Guarantors under this paragraph and all other rights of indemnity,
contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations. No
failure on the part of the Borrower or any Guarantor to make the payments
required by this paragraph (or any other payments required under applicable law
or otherwise) shall in any respect limit the obligations and liabilities of any
Guarantor with respect to its obligations under this paragraph, and each
Guarantor shall remain liable for the full amount of the obligations of such
Guarantor under this paragraph.
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Section 2. Obligations Not Waived
To the fullest extent permitted by applicable law, each Guarantor
waives presentment to, demand of payment from, and protest to the Borrower of
any of the Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of each Guarantor hereunder shall not be
affected by (a) the failure of the Bank to assert any claim or demand or to
enforce or exercise any right or remedy against the Borrower or any other
Guarantor under the provisions of the Loan Agreement or any other Loan Document,
or otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from, any of the terms or provisions of this Guarantee Agreement, any
other Loan Document, any guarantee or any other agreement, including with
respect to any other Guarantor under this Guarantee Agreement or (c) the failure
to perfect or any impairment of any security interest in, or the release of, any
of the security held by or on behalf of the Bank.
Section 3. Security
Each Guarantor authorizes the Bank to (a) take and hold security for
the payment of the obligations under this Guarantee Agreement and the
Obligations and exchange, enforce, waive and release any such security, (b)
apply such security and direct the order or manner of sale thereof as the Bank
in its sole discretion may determine and (c) release or substitute any one or
more endorsees, other Guarantors or other obligors.
Section 4. Guarantee of Payment
Each Guarantor further agrees that its guarantee hereunder
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Bank to the Borrower or any
other Loan Party, to any of the security held for payment of the Obligations or
to any balance of any deposit account or credit on the books of the Bank in
favor of the Borrower or any other Person.
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Section 5. No Discharge or Diminishment of Guarantee
The obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason (other than
the indefeasible payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Bank
to assert any claim or demand or to enforce any remedy under the Loan Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to any extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of any Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
Section 6. Defenses of Borrower Waived
To the fullest extent permitted by applicable law, each of the
Guarantors waives any defense based on or arising out of any defense of the
Borrower or any other Loan Party or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than the final and
indefeasible payment in full in cash of the Obligations. The Bank may, at its
election, foreclose on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment of any such security in lieu
of foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any Guarantor or exercise any other right or
remedy available to them against the Borrower or any Guarantor, without
affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Obligations have been fully, finally and indefeasibly
paid in cash. Pursuant to applicable law, each Guarantor waives any defense
arising out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower or
any other Guarantor, as applicable, or any security.
Section 7. Agreement to Pay; Subordination
In furtherance of the foregoing and not in limitation of any other
right that the Bank has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Bank as
designated thereby in cash the amount of such unpaid Obligations. Upon payment
by any Guarantor of any sums to the Bank as provided above, all rights of such
Guarantor against the Borrower arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate and junior in right of payment to the prior indefeasible
payment in full in cash of all the Obligations. In addition, any debt of the
Borrower or any other Loan Party now or hereafter held by any Guarantor is
hereby subordinated in right of payment to the prior indefeasible payment in
full in cash of all of the Obligations. If any amount shall erroneously be paid
to any Guarantor on account of (a) such subrogation, contribution,
reimbursement, indemnity or similar right or (b) any such debt of the Borrower
or such other Loan Party, such amount shall be held in trust for the benefit of
the Bank and shall forthwith be paid to the Bank to be credited against the
payment of the Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
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Section 8. Information
Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower and each other Loan Party's financial condition
and assets, and of all other circumstances bearing upon the risk of nonpayment
of the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that the Bank will not have
any duty to advise any of the Guarantors of information known to it or any of
them regarding such circumstances or risks.
Section 9. Representations and Warranties
Each of the Guarantors represents and warrants as to itself that all
representations and warranties relating to it contained in the Loan Agreement
are true and correct.
Section 10. Termination
The guarantees made hereunder (a) shall terminate when all the
Obligations have been indefeasibly paid in full in cash and the Bank has no
further commitment to lend or otherwise extend credit under the Loan Agreement
and (b) shall continue to be effective or be reinstated, as applicable, if at
any time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Bank or any Guarantor upon the bankruptcy or
reorganization of any Loan Party or otherwise.
Section 11. Binding Effect; Several Agreement; Assignments
Whenever in this Guarantee Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of any Guarantor that are contained in this Guarantee Agreement shall
bind and inure to the benefit of each party hereto and its successors and
assigns. This Guarantee Agreement shall become effective as to any Guarantor
when a counterpart hereof executed on behalf of such Guarantor shall have been
delivered to the Bank and a counterpart hereof shall have been executed on
behalf of the Bank, and thereafter shall be binding upon such Guarantor and the
Bank and their respective successors and assigns, and shall inure to the benefit
of such Guarantor, the Bank, and their respective successors and assigns, except
that no Guarantor shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the Bank
(and any such attempted assignment without such consent shall be void), except
as expressly contemplated by this Guarantee Agreement or the other Loan
Documents. If any of the equity interests in any Guarantor is sold, transferred
or otherwise disposed of pursuant to a transaction permitted by the Loan
Documents and, immediately after giving effect thereto, such Guarantor shall no
longer be a Subsidiary, then the obligations of such Guarantor under this
Guarantee Agreement shall be automatically released. This Guarantee Agreement
shall be construed as a separate agreement with respect to each Guarantor and
may be amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.
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Section 12. Waivers; Amendment
(a) No failure or delay of the Bank in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Bank hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Guarantee Agreement or any other Loan Document or consent
to any departure by any Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Guarantor in any case
shall entitle such Guarantor to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Guarantee Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
by, between or among the Bank and the Guarantor or Guarantors with respect to
which such waiver, amendment or modification is to apply.
Section 13. GOVERNING LAW
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 14. Notices
All communications and notices hereunder shall be in writing and all
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth in the Schedule hereto.
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Section 15. Survival of Agreement; Severability
(a) All covenants, agreements, representations and warranties made
by the Guarantors herein and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this Guarantee Agreement or any
other Loan Document shall be considered to have been relied upon by the Bank and
shall survive the execution and delivery of any Loan Document and the making of
any Loan, regardless of any investigation made by the Bank or on its behalf and
notwithstanding that the Bank may have had notice or knowledge of any Default or
Event of Default or incorrect representation or warranty at the time of any
Loan, and shall continue in full force and effect until this Guarantee Agreement
shall terminate.
(b) In the event any one or more of the provisions contained in this
Guarantee Agreement or in any other Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 16. Counterparts
This Guarantee Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one contract (subject to Section 11), and
shall become effective as provided in Section 11. Delivery of an executed
counterpart of this Guarantee Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Guarantee
Agreement.
Section 17. Rules of Interpretation
The rules of interpretation specified in Section 1.02 of the Loan
Agreement shall be applicable to this Guarantee Agreement.
Section 18. Jurisdiction; Consent to Service of Process
(a) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
the Eastern or Southern Districts of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Guarantee Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by applicable law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guarantee Agreement shall affect any right that any party hereto
may otherwise have to bring any action or proceeding relating to this Guarantee
Agreement or the other Loan Documents in the courts of any jurisdiction.
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(b) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guarantee Agreement or the other
Loan Documents in any court referred to in paragraph (a) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each party to this Guarantee Agreement irrevocably consents to
service of process in the manner provided for notices in Section 14. Nothing in
this Guarantee Agreement will affect the right of the Bank or any other party to
this Guarantee Agreement to serve process in any other manner permitted by law.
Section 19. LIMITATION OF LIABILITY
EXCEPT AS PROHIBITED BY LAW, EACH GUARANTOR HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND TO EXTEND CREDIT TO THE BORROWER.
Section 20. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTEE AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ACCEPT OR ENTER INTO THIS GUARANTEE
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
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Section 21. Additional Guarantors
Upon execution and delivery after the date hereof by the Bank and a
Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall become
a Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any such instrument shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Guarantee
Agreement.
Section 22. Right of Setoff
The Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to setoff and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Bank to or for the credit
or the account of any Guarantor against any or all the obligations of such
Guarantor now or hereafter existing under this Guarantee Agreement and the other
Loan Documents held by the Bank, irrespective of whether or not the Bank shall
have made any demand under this Guarantee Agreement or any other Loan Document
and although such obligations may be unmatured. The rights of the Bank under
this Section are in addition to other rights and remedies (including other
rights of setoff) which the Bank may have.
Section 23. Expenses
Each Guarantor agrees to pay or reimburse the Bank for all its costs
and expenses (including, without limitation, the reasonable fees and expenses of
attorneys for the Bank) incurred in connection with the preparation,
administration, default, collection, waiver or amendment of this Guarantee
Agreement, or in connection with Bank's exercise, preservation or enforcement of
any of its rights, remedies or options hereunder, including, without limitation
in connection with (i) the enforcement or preservation of any rights under this
Guarantee Agreement or any other Loan Document or any other instrument or
agreement entered into in connection herewith or therewith including, without
limitation, the reasonable fees and disbursements of attorneys for the Bank;
(ii) any claim or action threatened, made or brought against the Bank arising
out of or relating to any extent to this Guarantee Agreement, or any other Loan
Document or any instrument or agreement entered into in connection with the
transactions contemplated hereby or thereby and (iii) the reasonable fees and
disbursements of any outside counsel to the Bank and/or the allocated costs of
in-house legal counsel incurred from time to time in connection with the
transactions contemplated by this Guarantee Agreement. All such fees and
expenses shall be Obligations and, commencing ten days after demand therefore,
shall, until paid, bear interest at the highest post default rate set forth in
the Loan Agreement.
Section 24. Arbitration.
(a) This paragraph concerns the resolution of any controversies or
claims between any Guarantor and the Bank, whether arising in contract, tort or
by statute, including but not limited to controversies or claims that arise out
of or relate to: (i) this Guarantee Agreement (including any renewals,
extensions or modifications); or (ii) any document related to this Guarantee
Agreement (collectively a "Claim").
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(b) At the request of any Guarantor or the Bank, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this Guarantee
Agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with
the Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In the
event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted in
the State of New York. All Claims shall be determined by one arbitrator;
however, if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall commence
within 90 days of the demand for arbitration and close within 90 days of
commencement and the award of the arbitrator(s) shall be issued within 30 days
of the close of the hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional 60
days. The arbitrator(s) shall provide a concise written statement of reasons for
the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute of
limitations, the service on JAMS under applicable JAMS rules of a notice of
Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this
arbitration provision or whether a Claim is arbitrable shall be determined by
the arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any Guarantor or the
Bank to: (i) exercise self-help remedies, such as but not limited to, setoff;
(ii) initiate judicial or nonjudicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights, or
(iv) act in a court of law to obtain an interim remedy, such as but not limited
to, injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any Guarantor or the Bank, including the suing party,
thereafter to require submittal of the Claim to arbitration.
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IN WITNESS WHEREOF, each Guarantor indicated below has duly executed this
Guarantee Agreement as of the day and year first above written.
ATLANTIC RESEARCH & CONSULTING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
SIGNIA PARTNERS INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
TTECH ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
GUIDELINE RESEARCH CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
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GUIDELINE/CHICAGO, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
ADVANCED ANALYTICS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
TABLINE DATA SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Assistant Secretary
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