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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Individual Investor Group, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title Class of Securities)
455907105
(CUSIP Number)
Michael Kaplan, Esq.
c/o Individual Investor Group, Inc.
1633 Broadway, 38th Floor, New York, NY 10019
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 31, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 455907105 Page 2 of 7 Pages
------------- ------------------------
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Jonathan L. Steinberg
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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| 7 SOLE VOTING POWER
|
| 1,882,968 shares of Common Stock
NUMBER OF |-----------------------------------------------------------
SHARES | 8 SHARED VOTING POWER
BENEFICIALLY |
OWNED BY | -0-
EACH |-----------------------------------------------------------
REPORTING | 9 SOLE DISPOSITIVE POWER
PERSON |
WITH | 1,882,968 shares of Common Stock
|-----------------------------------------------------------
| 10 SHARED DISPOSITIVE POWER
|
| -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,882,968 shares of Common Stock
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.8%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Item 1. Security and Issuer.
This statement relates to the Common Stock, par value $.01 per
share ("Common Stock"), of Individual Investor Group, Inc. ("Company"), whose
principal executive offices are located at 1633 Broadway, 38th Floor, New York,
New York 10019.
Item 2. Identity and Background.
No change.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is amended to add the following:
The aggregate purchase price of $3,250,000 used to acquire the
521,291 shares of Common Stock by Wise Partners, L.P. on June 30, 1997 and on
December 31, 1997 was funded by the bank financing discussed in Item 6.
Item 4. Purpose of Transaction.
Item 4 is amended to add the following:
Mr. Steinberg, as the general partner of Wise Partners, L.P.,
has determined that the shares of Common Stock acquired by the partnership will
be held for investment purposes.
Item 5. Interest in Securities of the Issuer.
Item 5 is amended to add the following:
As of the date of this Amendment No. 6, Mr. Steinberg beneficially owns
1,882,968 shares of Common Stock, which represents 24.8% of the outstanding
Common Stock of the Company. Of the 1,882,968 shares of Common Stock, 900,010
shares of Common Stock are owned of record by Mr. Steinberg, 521,291 shares of
Common Stock are owned of record by Wise Partners, L.P. and are beneficially
owned by Mr. Steinberg and 461,667 shares of Common Stock are subject to options
currently exercisable by Mr. Steinberg.
Wise Partners, L.P. is a limited partnership organized and existing under
the laws of the State of Delaware. Mr. Steinberg is the sole General Partner of
Wise Partners, L.P. and as such has the power to direct the vote and disposition
of the 521,291 shares of Common Stock owned by Wise Partners, L.P. Of the
521,291 shares of Common Stock, 489,795 shares of Common Stock were purchased by
Wise Partners, L.P. on December 31, 1997, at a price per share equal to $6.125
(the closing ask price of the Common Stock as reported by the Nasdaq Stock
Market on December 30, 1997), and 31,496 shares of Common Stock were purchased
by Wise Partners L.P., on June 30, 1997, at a price per share of $7.93. All the
shares of Common Stock were purchased directly from the Company in a
transactions exempt from the registration requirements of the Securities Act of
1933, as amended, pursuant to Section 4(2). Mr. Saul
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Steinberg, the father of Mr. Steinberg, the reporting person, is a limited
partner of Wise Partners, L.P. and the only other person known to have the right
to receive dividends or proceeds from the sale of the 521,291 shares of Common
Stock owned of record by Wise Partners, L.P.
Of the 1,882,968 shares of Common Stock being reported as beneficially
owned by Mr. Steinberg in this Amendment No. 6, 461,667 shares of Common Stock
are subject to the terms of a Stock Option Agreement dated May 9, 1997 issued by
the Company to Mr. Steinberg. That agreement governs three series of options as
follows:
(A) The right to purchase an aggregate of 500,000 shares of
Common Stock as follows: 125,000 shares of Common Stock may be
purchased on or after April 7, 1996 at a purchase price of $4.9375 per
share; an additional 125,000 shares of Common Stock may be purchased
on or after April 7, 1997 at a purchase price of $4.9375 per share; an
additional 125,000 shares of Common Stock may be purchased on or after
April 7, 1998 at a purchase price of $6.25 per share; and an
additional 125,000 shares of Common Stock may be purchased on or after
April 7, 1999 at a purchase price of $7.50 per share. As of the date
of this Amendment No. 6, Mr. Steinberg currently has the right to
acquire 375,000 shares of Common Stock. The right to purchase the
above shares of Common Stock expires on April 6, 2004, unless earlier
terminated pursuant to the terms of the option.
(B) The right to purchase an aggregate of 80,000 shares of Common
Stock as follows: 26,667 shares of Common Stock may be purchased on or
after June 23, 1996; an additional 26,667 shares of Common Stock may
be purchased on or after June 23, 1997; and an additional 26,666
shares of Common Stock may be purchased on or after June 23, 1998. The
exercise price is $5.75 per share. As of the date of this Amendment
No. 6, Mr. Steinberg currently has the right to acquire 53,334 shares
of Common Stock. The right to purchase the above shares of Common
Stock expires on June 23, 2005, unless earlier terminated pursuant to
the terms of the option.
(C) The right to purchase an aggregate of 100,000 shares of
Common Stock as follows: 33,333 shares of Common Stock may be
purchased on or after November 4, 1997; 33,333 shares of Common Stock
may be purchased on or after November 4, 1998; and 33,334 shares of
Common Stock may be purchased on or after November 4, 1999. The
exercise price is $7.50 per share. As of the date of this Amendment
No. 6, Mr. Steinberg currently has the right to acquire 33,333 shares
of Common Stock. The right to purchase the above shares of Common
Stock expires on November 4, 2006, unless earlier terminated pursuant
to the terms of the option.
Except as otherwise disclosed herein, no transactions in the
shares of Common Stock have been effected by Mr.. Steinberg in the past 60 days.
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Item 6. Contracts, Arrangements, Undertakings or Relationships with Respect to
Securities of the Issuer.
Item 6 is hereby amended to delete the sixth paragraph of the
item as set forth in Amendment #4 to this Schedule 13D and in its place is
substituted the following:
On December 31, 1997, Wise Partners, L.P. entered into a
Demand Grid Note ("1997 Note") and Guaranty and Security Agreement ("1997
Security Agreement") with Republic National Bank of New York ("Republic"). The
1997 Note permits Wise Partners, L.P. to borrow, from time to time, an aggregate
of $9,000,000. Interest is payable on the unpaid principal of the 1997 Note,
monthly, in arrears at the reference rate of Republic, and the principal is
payable upon demand by Republic. As partial security for the 1997 Note, pursuant
to the 1997 Security Agreement, Mr. Steinberg pledged an aggregate of 55,000
shares of Common Stock of the Company owned of record by him. In addition, under
the 1997 Security Agreement, Republic would have the right to foreclose upon the
845,000 shares of Common Stock owned of record by him and previously pledged to
Republic by Mr. Steinberg under the 1994 Note (previously defined) and 1994
Security Agreement (previously defined). In the event of default under the 1997
Note and 1997 Security Agreement, Republic may exercise all the voting rights
and foreclose upon and publicly or privately sell the shares of Common Stock
pledged by Mr.
Steinberg.
Item 6 is hereby amended to delete the third paragraph of the
item set forth in Amendment #3 and the third paragraph of the item set forth in
Amendment #4 of this Schedule 13D.
Item 7. Material to be Filed as Exhibits.
(10.1) Stockholder Agreement, dated as of January 1, 1989, among the Company,
Mr. Steinberg, Mr. Jonathan Tisch, Mr. Saul Steinberg and certain other
stockholders of the Company.*
(10.2) Stock Purchase Agreement, dated August 7, 1991, among the Company, Mr.
Jonathan Tisch and Mr. Steinberg.*
(10.3) Demand Grid Note, dated December 16, 1994, between Mr. Steinberg and
Republic National Bank of New York.*
(10.4) Continuing General Security Agreement, dated December 16, 1994, between
Mr. Steinberg and Republic National Bank of New York.*
(10.5) Stock Purchase Agreement, dated June 30, 1997, between the Company and
Wise Partners, L.P. (Incorporated by reference from Exhibit 10.3 of the
Quarterly Report on Form 10-QSB for the period ended June 30, 1997 of the
Company.)+
(10.6) Stock Purchase Agreement, dated December 30, 1997, between the Company
and Wise Partners, L.P.+
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(10.7) Form of Stock Option Agreement, dated May 9, 1997, between the Company
and Mr. Steinberg. (Incorporated by reference from Exhibit 10.4 of the
Quarterly Report on Form 10-QSB for the period ended June 30, 1997 of the
Company.)+
(10.8) Demand Grid Note, dated December 31, 1997, between Wise Partners, L.P.
and Republic National Bank of New York.+
(10.9) Guaranty and Security Agreement, dated December 31, 1997, between Wise
Partners, L.P. and Republic National Bank of New York +
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* Previously filed.
+ Filed herewith.
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<PAGE>
SIGNATURE
After a reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true
complete, and correct.
Dated: January 13, 1998
/s/ Jonathan L. Steinberg
---------------------------
Jonathan L. Steinberg
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<PAGE>
This STOCK PURCHASE AGREEMENT, dated as of December 31, 1997
(the "Agreement"), is between INDIVIDUAL INVESTOR GROUP, INC., a Delaware
corporation (the "Company"), and WISE PARTNERS, L.P., a Limited Partnership
organized and existing under the laws of the State of Delaware (the "Buyer").
1. PURCHASE AND SALE. Subject to the terms and conditions
herein set forth, the Company hereby sells and delivers to Buyer and Buyer
hereby purchases from the Company, for an aggregate purchase price of Three
Million Dollars ($3,000,000), an aggregate of Four Hundred Eighty-Nine Thousand
Seven Hundred Ninety-Five (489,795) shares (the "Shares") of the Company's
common stock, $.01 par value per share (the "Common Stock"). The Company will
deliver to Buyer, within Thirty (30) days of the effective date of this
Agreement, stock certificates representing the Shares indicating the Buyer as
the sole owner of the Shares. The Buyer hereby makes payment to the Company, by
delivery of a bank check or certified check payable to the order of the Company
or by wire transfer to an account designated by the Company, in the amount of
Three Million Dollars ($3,000,000).
2. REPRESENTATIONS AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to and covenants with Buyer as follows:
2.1 Organization. The Company is duly organized, validly
existing and in good standing in the State of Delaware.
2.2 Authority; Execution and Delivery, Etc. The execution,
delivery, and performance of this Agreement has been duly authorized by the
Company's Board of Directors and no other corporate proceedings on the part of
the Company or its stockholders are required. This Agreement has been duly
executed and delivered by the Company and constitutes the legal, valid, and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights in
general or general principles of equity. The Shares have been duly authorized
and are legally and validly issued, fully paid and non-assessable. The Company
hereby conveys marketable title to the Shares to the Buyer, free and clear of
all liens and encumbrances.
3. REPRESENTATIONS OF BUYER. Buyer hereby represents and
warrants to the Company as follows:
(a) Buyer is a Limited Partnership organized and
existing in good standing under the laws of the State of Delaware and Jonathan
Steinberg, an individual residing in the State of New York, is the sole General
Partner of Buyer.
(b) Buyer is aware that its investment involves
a substantial degree of risk, including, but not limited to the following: (i)
the Company has had substantial operating losses for the fiscal years ended
December 31, 1996 and December 31, 1997, and expects to continue to incur losses
in the future; (ii) the Company has experienced and will continue to experience
substantial fluctuations in its operating income (loss) from quarter to quarter
and year to year; (iii) the Company may need additional financing in the future
to fund operating losses; (iv) management and the existing principal
stockholders of the Company beneficially own a substantial amount of the
outstanding voting stock of the Company and accordingly are in a position to
substantially influence the election of all directors of the Company and the
vote on matters requiring stockholder approval; (v) the Company's success will
to a significant extent rely upon the continued services and abilities of
Jonathan Steinberg, who is the Chairman and Chief
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Executive Officer of the Company. Buyer acknowledge and is aware that there is
no assurance as to the future performance of the Company.
(c) Buyer is purchasing the Shares for his own
account for investment and not with a view to or in connection with a
distribution of the Shares, nor with any present intention of selling or
otherwise disposing of all or any part of the Shares, except as contemplated in
Section 5.1 below. Subject to Section 5.1 below, Buyer agrees that Buyer must
bear the economic risk of its investment because, among other reasons, the
Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned, or otherwise disposed of until
they are registered under the Securities Act and under applicable securities
laws of certain states or an exemption from such registration is available.
Promptly upon Buyer's request, after the expiration of the two-year holding
period provided for in the SEC's Rule 144(k), provided that Buyer is not then
and for three months prior thereto has not been, an affiliate of the Company
within the meaning of the SEC's Rule 144(a), the Company will exchange the
Buyer's stock certificate (legended as aforesaid) for a new certificate with no
restrictive legends thereon, suitable for transfer in the public securities
markets, subject to the Buyer's providing the Company with such usual and
customary representations in connection therewith as the Company may reasonably
request.
(d) Buyer has the financial ability to bear the
economic risk of its investment in the Company (including its complete loss),
has adequate means for providing for its current needs and personal
contingencies and has no need for liquidity with respect to its investment in
the Company.
(e) Buyer has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Company and Buyer has obtained, in its judgment,
sufficient information from the Company to evaluate the merits and risks of an
investment in the Company. Buyer has had full opportunity to ask questions and
receive satisfactory answers concerning all matters pertaining to its investment
and all such questions have been answered to its full satisfaction. Buyer has
been provided an opportunity to obtain any additional information concerning the
Company and all other information to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense. Buyer has
received no representation or warranty from the Company with respect to its
investment in the Company, and has relied solely upon its own investigation in
making a decision to invest in the Company.
(f) Buyer is an "accredited investor" as defined
in Section 2(15) of the Securities Act and in Rule 501 promulgated thereunder.
(g) This Agreement has been duly executed and
delivered by Buyer and constitutes the legal, valid, and binding obligation of
the Buyer enforceable against the Buyer in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights in general or general principles
of equity.
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4. RESTRICTIONS ON TRANSFER.
4.1 Restrictions on Transfer. Buyer agrees that
it will not sell, transfer, or otherwise dispose of any of the Shares, except
pursuant to an effective registration statement under the Securities Act or an
exemption from the registration requirements of the Securities Act and the
Company has received an opinion of counsel satisfactory to the Company that such
exemption is available.
4.2 Legend. Each certificate for the Shares
shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY BE SOLD OR OTHERWISE TRANSFERRED
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE AND THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH EXEMPTION IS AVAILABLE."
5. REGISTRATION RIGHTS.
5.1 Piggyback Registration. From the date of
this agreement until the second anniversary thereof, if the Company proposes to
file a registration statement under the Securities Act with respect to an
offering for its own account of any class of security (other than a registration
statement on Form S-4 or S-8 or successor forms thereto or filed in connection
with an exchange offer or business combination or an offering of securities
solely to the Company's existing stockholders), then the Company shall in each
case give written notice of such proposed filing to the Buyer at least thirty
days before the anticipated filing date, and such notice shall offer the Buyer
the opportunity to register such number of shares of Common Stock of the Company
as the Buyer may request. Upon the written request of the Buyer made within
twenty days of receipt of such notice, the Company shall use its best efforts to
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Buyer to include such shares in such offering on the same
terms and conditions as any shares of Common Stock of the Company included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering delivers a written opinion to the Buyer that the
total number of shares which it, the Company and any other persons or entities
intend to include in such offering may adversely affect the success or offering
price of such offering, then the number of shares to be offered for the account
of the Buyer shall be reduced pro rata to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter (or, if applicable, excluding such
shares entirely), provided that if shares are being offered for the account of
other persons or entities as well as the Company, such reduction shall not
represent a greater fraction of the number of shares intended to be offered by
the Buyer than the fraction of similar reductions imposed on such other persons
or entities other than the Company over the amount of securities they intended
to offer. In the event that the registration proposed by the Company is an
underwritten primary offering of its securities and the Buyer does not sell its
securities to the underwriter of the Company's securities in connection with
such offering, the Buyer shall, to the extent permitted by applicable law or
regulation, refrain from selling any of its securities during the period of
distribution of the
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Company's securities by such underwriter in the primary offering and the period
in which the underwriter participates in the aftermarket and for such additional
period requested by the underwriter, provided, however, that the Buyer shall, in
any event, be entitled to sell its securities in connection with such
registration statement commencing on the 90th day after the effective date of
such registration statement.
5.2 Blue Sky. In connection with the
registration of its securities pursuant to Section 5.1, the Company shall use
all reasonable efforts to register and qualify its securities covered by such
registration statement under such securities or Blue Sky laws of such
jurisdictions within the United States as the Buyer shall reasonably request and
do any and all such other acts and things as may be reasonably necessary or
advisable to enable the Buyer to consummate the disposition in such
jurisdictions of the securities held by the Buyer; provided that the Company
shall not be required to consent to general service of process, to qualify, to
do business or subject itself to tax liability in any jurisdiction in which it
has not, as of the effective date of such registration, qualified to do
business.
5.3 Expenses. All expenses in connection with
registrations of the Shares shall be borne by the Company except for
underwriting discounts and commissions, applicable transfer taxes, expenses
associated with blue sky registrations requested by Buyer pursuant to Section
5.2, and expenses of counsel to the Buyer, which shall be borne by the Buyer.
5.4 Indemnification.
(a) Subject to the conditions set forth below, the
Company agrees to indemnify and hold harmless the Buyer, its General Partner,
limited partners, and its affiliates and each of their officers, directors,
trustees, agents and employees and each person, if any, who controls the Buyer
("Controlling Person") within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act against any and all loss, liability, claim,
damage and expense whatsoever (including but not limited to any and all legal or
other expenses reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever) to
which it may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended ("Exchange Act") or any other statute or at common law
or otherwise, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement (a
"Registration Statement") in which the Buyer's securities shall be included or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to the Buyer by the Buyer expressly for
use in the Registration Statement. The Company agrees promptly to notify the
Buyer of the commencement of any litigation or proceedings against the Company
or any of its officers, directors or controlling persons in connection with the
issue and sale of the Shares in connection with the Registration Statement.
(b) If any action is brought against the Buyer
in respect of which indemnity may be sought against the Company pursuant to
Section 5, Buyer shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action,
including the employment and fees of counsel (subject to the approval
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of Buyer) and payment of actual expenses. Buyer shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of Buyer unless (i) the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense of
such action, or (ii) the Company shall not have employed counsel to have charge
of the defense of such action, or (iii) the Buyer shall have reasonably
concluded that there may be defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to direct the defense of such action on behalf of the Buyer),
in any of which events the fees and expenses of not more than one additional
firm of attorneys selected by Buyer and/or controlling person shall be borne by
the Company. Notwithstanding anything to the contrary contained herein, if Buyer
shall assume the defense of such action as provided above, the Company shall
have the right to approve the terms of any settlement of such action which
approval shall not be unreasonably withheld.
(c) Buyer agrees to indemnify and hold harmless each
of the Company, its directors, officers and employees and any underwriter (as
defined in the Securities Act) and each Controlling Person of the Company,
against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to Buyer, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions directly
relating to Buyer in the Registration Statement, and in strict conformity with,
written information furnished to the Company by Buyer expressly for use in the
Registration Statement. In case any action shall be brought against the Company
or any other person so indemnified based on the Registration Statement, and in
respect of which indemnity may be sought against Buyer, Buyer shall have the
rights and duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to Buyer by the provisions of
paragraph (b) above.
5.5 Contribution.
(a) In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) any person
entitled to indemnification under this Section 5 makes claim for indemnification
pursuant hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, or (ii) contribution
under the Securities Act, the Exchange Act, or otherwise may be required on the
part of any such person in circumstances for which indemnification is provided
under this Section 5, then, and in each such case, the Company and Buyer shall
contribute, in proportion to their relative fault, to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and Buyer, as incurred; provided,
that, no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(b) Within fifteen days after receipt by any party
to this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (the "contributing party"),
notify the contributing party of the commencement thereof, but the omission
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to so notify the contributing party will not relieve it from any liability which
it may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any Claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section 5 are intended to supersede,
to the extent permitted by law, any right to contribution under the Securities
Act, the Exchange Act or otherwise available.
6. MISCELLANEOUS.
6.1 Expenses. Each party shall be liable for its
own expenses in connection with the transactions contemplated by this Agreement.
6.2 Amendments. This Agreement may not be changed
orally, but only by an agreement in writing signed by the party against whom
enforcement is sought.
6.3 Successors and Assigns. All covenants and
agreements in this Agreement contained by or on behalf of either of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the Company and of Buyer, whether so expressed or not.
6.4 Notices, Etc. All notices, requests, demands
and other communications hereunder shall be in writing and shall be delivered in
person or mailed by certified or registered mail first-class, postage prepaid:
If to the Company: with a copy to:
Individual Investor Group, Inc. Individual Investor Group, Inc.
1633 Broadway, 38th Floor 1633 Broadway, 38th Floor
New York, New York 10019 New York, New York 10019
Attention: Mr. Jonathan L. Steinberg Attn: General Counsel
If to the Buyer:
Wise Partners, L.P. Graubard Mollen & Miller
c/o Jonathan Steinberg 600 Third Avenue
Individual Investor Group, Inc. New York, New York 10016
1633 Broadway, 38th Floor Attn: Peter Ziemba, Esq.
New York, New York 10019
Any such notice, request, demand or other communication hereunder shall be
deemed to have been duly given or made and to have become effective (i) if
delivered by hand, at the time of receipt thereof and (ii) if sent by registered
or certified first-class mail, postage prepaid, five business days thereafter.
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Any party may, by written notice to the other, change the
address to which notices to such party are to be delivered or mailed.
6.5 Governing Law. This Agreement is being
delivered and is intended to be performed in the State of New York and shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of such State.
IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the date first above written.
COMPANY: BUYER:
INDIVIDUAL INVESTOR GROUP, INC. WISE PARTNERS, L.P.
By: BY:
----------------------------- -------------------------------
Scot Rosenblum Jonathan Steinberg
Senior Vice President General Partner
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DEMAND GRID NOTE
New York, New York
$9,000,000.00 Date: December 30, 1997
ON DEMAND, the undersigned ("Maker") promises to pay to the order of
REPUBLIC NATIONAL BANK OF NEW YORK ("Bank") at the principal office of Bank
located at 452 Fifth Avenue, New York, New York 10018 or at any of its other
banking offices in New York as Bank may designate by written notice to Maker,
the principal sum of NINE MILLION DOLLARS, or so much thereof as shall be
advanced by Bank to Maker, in Bank's sole discretion, and not repaid, together
with interest on the unpaid principal amount hereof from time to time
outstanding from the date hereof until the date on which this Note is paid in
full, at the rate set forth below.
Interest on the unpaid principal of this Note will be due and payable
when demand is made for payment of the principal of this Note and (indicate
whichever is applicable):
X on the last day of each month.
on the _________ day of each __________.
Prior to the date that demand is made for payment of the principal
hereof, this Note shall bear interest at a rate (the "Contract Rate") equal to
(indicate whichever is applicable):
___ a fixed rate of ______% per annum.
X a fluctuating rate of O% per annum above the
Reference Rate (as defined below), such rate to
change without notice from time to time with each
change in the Reference Rate.
After demand is made for payment of the principal of this Note, interest under
this Note shall be payable on demand and shall accrue at a fluctuating rate per
annum equal to 2% per annum above (i) if the Contract Rate is a fixed rate, the
Contract Rate, or (ii) if the Contract Rate is a fluctuating rate, the greater
from time to time of (x) the Contract Rate in effect on the date that the
principal became due and (y) the Contract Rate that would have been in effect
from time to time if the principal had not become due. Interest shall be
calculated on the basis of a 360-day year for actual days elapsed. In no event
shall the interest rate applicable at any time to this Note exceed the maximum
rate permitted by law. As used herein, "Reference Rate" means the rate
established by Bank from time to time at its principal domestic office as its
reference lending rate for domestic commercial loans. Bank may make loans to
customers above, at or below the Reference Rate.
This Note evidences loans made by Bank to Maker in Bank's sole
discretion, from time to time. The unpaid principal balance of this Note at any
time shall be the total amount advanced by Bank to Maker in Bank's sole
discretion, less the total amount of principal payments made hereon by Maker.
The date and amount of each such loan and each payment on account of principal
thereof may be endorsed by Bank on the grid attached to and made a part of this
Note, and when so endorsed shall represent evidence thereof binding upon Maker
in the absence of manifest error. Any failure by Bank to so endorse shall in no
way
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mitigate or discharge the obligation of Maker to repay any loans actually made.
Maker may prepay this Note in whole at any time with all accrued interest to the
date of prepayment. So long as Maker is not in default under this Note, Maker
may prepay this Note in part at any time with accrued interest to the date of
prepayment on the principal amount prepaid.
Requests for loans to Maker from Bank and directions as to the
deposition of the proceeds thereof may be given orally (including by telephone)
or in writing to Bank by the General Partner of Maker as authorized by the
Partnership Bank Account Agreement heretofore delivered to Bank, as such
Partnership Bank Account Agreement may be amended or superseded from time to
time, provided an amended Partnership Bank Account Agreement shall have been
executed by the General Partner(s) of Maker and delivered to an officer of Bank
at its office for payment. Bank may conclusively rely on the authorities
contained in said Partnership Bank Account Agreement. Any such loan so made
shall be conclusively presumed to have been made to or for the benefit of Maker
and Maker shall be liable in respect thereof when made in accordance with any
such request or direction, or when deposited to any account of Maker with Bank,
even though persons other than those authorized to borrow on behalf of Maker may
have authority to draw against such account. Bank may rely on any such request
or direction which it believes to be genuine, and Bank shall be fully protected
in so doing without any duty to make further inquiry as to such genuineness or
in otherwise acting in good faith in the premises. By making a request for a
loan, Maker shall be deemed to be representing to Bank that all of the
representations and warranties of Maker set forth in this Note are true and
correct as of the date of such request as if made on and as of such date and
shall also be deemed to be representing and warranting to Bank that on such date
Maker is not in breach of any of its covenants to Bank set forth in this Note or
in any other document or instruments of Maker to Bank and no event of default
has occurred and is continuing with respect to any Obligations (as defined
below).
This Note shall be payable in lawful money of the United
States of America in immediately available funds. Except as otherwise provided
herein with respect to prepayments, all payments on this Note shall be applied
to the payment of accrued interest before being applied to the payment of
principal. Any payment which is required to be made on a day which is not a
banking business day in the City of New York shall be payable on the next
succeeding banking business day and such additional time shall be included in
the computation of interest. In the event that any other Obligations are due at
any time that Bank receives a payment from Maker on account of this Note or any
such other Obligations, Bank may apply such payment to amounts due under this
Note or any such other Obligations in such manner as Bank, in its discretion,
elects, regardless of any instructions from Maker to the contrary.
Maker acknowledges that this Note is an obligation which is payable on
demand and that notwithstanding anything to the contrary in any other
instrument, agreement or other document to which Maker and/or Bank is a party,
the enumeration in any such document of specific events of default, conditions
and/or covenants relating to the loan evidenced by this Note or to any other
Obligation, shall not be construed to qualify, define or otherwise limit in any
way Bank's right, power or ability, at any time, to make demand for payment of
the principal of and interest on this Note, and Maker agrees that the occurrence
of any event of default or breach of any condition or covenant in any such
document is not the only basis for demand to be made on this Note.
To induce Bank, in its sole discretion, to make loans to Maker, Maker
represents, warrants and covenants to Bank that (i) Maker is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization, with full power and authority to make, deliver and perform this
Note; (ii) the
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execution, delivery and performance by Maker of this Note have been duly
authorized by all necessary Partnership action and do not and will not violate
or conflict with its Limited Partnership Agreement or any agreement or
instrument to which Maker is a party or which may be binding on Maker; (iii)
this Note has been fully executed by the general partner of Maker and
constitutes a legal, valid, binding and enforceable obligation of Maker; (iv) no
authorization, consent, approval, license, exemption of or filing or
registration with, any court or government or governmental agency is or will be
necessary to the valid execution, delivery or performance by Maker of this Note;
(v) the loans evidenced by this Note will be used solely for working capital
purposes; and (vi) there are no pending or threatened actions, suits or
proceedings against or affecting Maker by or before any court, commission,
bureau or other governmental agency or instrumentality, which, individually or
in the aggregate, if determined adversely to Maker, would have a material
adverse effect on the business, properties, operations, or condition, financial
or otherwise, of Maker.
Bank shall have a continuing lien and/or right of setoff on, and is
hereby granted a security interest in, all deposits (general and special) and
credits with Bank or any Bank Affiliate of any Maker and indorser, and may apply
all or part of the same to any Obligations, at any time or times, without
notice. Bank shall have a continuing lien on, and is hereby granted a security
interest in, all property of every Maker and indorser and the proceeds thereof
held or received by or for Bank or any Bank Affiliate for any purpose, whether
or not for the express purpose of serving as collateral security for the
Obligations. As used in this Note, the term "Bank Affiliate" includes any
individual, partnership or corporation acting as nominee or agent for Bank, and
any corporation or bank which is directly or indirectly owned or controlled by,
or under common control with, Bank. Any notice of disposition of property shall
be deemed reasonable if oral notice is attempted to be given to the General
Partner of the Maker by telephone and if written notice is mailed by certified
mail at least five days before such disposition to the last address of Maker or
indorser on Bank's records. However, the failure of the Bank to reach the
General Partner by telephone shall not limit any of the rights of the Bank at
law or hereunder. If the Obligations evidenced by this Note are secured by a
security agreement and/or other security documents which Maker has separately
delivered to Bank (whether or not such documents make specific reference to this
Note), reference to such documents is made for a description of the collateral
provided thereby and of the rights of Maker and Bank therein. The rights and
remedies of Bank provided hereunder are cumulative with the rights and remedies
available to Bank under any other instruments or agreements or under applicable
law. As used in this Note, the term "Obligations" means all amounts payable
under this Note and any and all other indebtedness, obligations and liabilities
of Maker to Bank, and all claims of Bank against Maker, now existing or
hereafter arising, direct or indirect (including participations or any interest
of Bank in indebtedness of Maker to others), acquired outright, conditionally,
or as collateral security from another, absolute or contingent, joint or
several, secured or unsecured, matured or unmatured, monetary or non-
monetary,arising out of contract or tort, liquidated or unliquidated, arising by
operation of law or otherwise, and all extensions, renewals, refundings,
replacements and modifications of any of the foregoing.
In case any principal of or interest on this Note is not paid when due,
each Maker and indorser shall be jointly and severally liable for all costs of
enforcement and collection of this Note incurred by Bank or any other holder of
this Note, including but not limited to reasonable attorneys' fees,
disbursements and court costs. In addition, in the event of a default hereunder,
Maker shall pay all reasonable attorneys' fees and disbursements incurred by
Bank in obtaining advice as to its rights and remedies in connection with such
default.
Maker and each indorser hereby separately waive presentment, notice of
dishonor, protest and notice of protest, and any or all other notices or demands
(other than demand for payment) in connection with the
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<PAGE>
delivery, acceptance, performance, default, endorsement or guarantee of this
Note. The liability of any Maker or indorser hereunder shall be unconditional
and shall not be in any manner affected by any indulgence whatsoever granted or
consented to by the holder hereof, including, but not limited to any extension
of time, renewal, waiver or other modification. Any failure of the holder to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any time and from time to time
thereafter. Bank or any holder may accept late payments, or partial payments,
even though marked "payment in full" or containing words of similar import or
other conditions, without waiving any of its rights. No amendment, modification
or waiver of any provision of this Note nor consent to any departure by Maker
therefrom shall be effective, irrespective of any course of dealing, unless the
same shall be in writing and signed by Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. This Note cannot be changed or terminated orally or by estoppel
or waiver or by any alleged oral modification regardless of any claimed partial
performance referable thereto.
Any notice from Bank to Maker or any indorser shall be deemed given
when delivered to Maker or such indorser by hand or five days after it is
deposited in the United States mail by certified mail and addressed to Maker or
such indorser at the last address of maker or such indorser appearing on Bank's
records.
This Note shall be governed by and construed in accordance with the
laws of the State of New York applicable to instruments made and to be performed
wholly within that state. If any provision of this Note is held to be illegal or
unenforceable for any reason whatsoever, such illegality or unenforceability
shall not affect the validity of any other provision hereof.
MAKER AND EACH INDORSER AGREE THAT ANY ACTION, DISPUTE, PROCEEDING,
CLAIM OR CONTROVERSY BETWEEN MAKER OR SUCH INDORSER AND BANK, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT BANK'S
ELECTION, WHICH ELECTION MAY BE MADE AT ANY TIME PRIOR TO THE COMMENCEMENT OF A
JUDICIAL PROCEEDING BY BANK, OR IN THE EVENT OF A JUDICIAL PROCEEDING INSTITUTED
BY MAKER OR SUCH INDORSER AT ANY TIME PRIOR TO THE LAST DAY TO ANSWER AND/OR
RESPOND TO A SUMMONS AND/OR COMPLAINT MADE BY MAKER OR SUCH INDORSER, BE
RESOLVED BY ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AND
SHALL, AT THE ELECTION OF BANK, INCLUDE ALL DISPUTES ARISING OUT OF OR IN
CONNECTION WITH (1) THIS NOTE OR ANY RELATED AGREEMENTS OR INSTRUMENTS, (2) ALL
PAST, PRESENT AND FUTURE AGREEMENTS INVOLVING MAKER OR SUCH INDORSER AND BANK,
(3) ANY TRANSACTION RELATED TO THIS NOTE AND ALL PAST, PRESENT AND FUTURE
TRANSACTIONS INVOLVING MAKER OR SUCH INDORSER AND BANK, AND (4) ANY ASPECT OF
THE PAST, PRESENT OR FUTURE RELATIONSHIP OF MAKER OR SUCH INDORSER AND BANK.
Bank may elect to require arbitration of any Dispute with Maker or any indorser
without thereby being required to arbitrate all Disputes between Bank and Maker
or such indorser. Any such Dispute shall be resolved by binding arbitration in
accordance with Article 75 of the New York Civil Practice Law and Rules and the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"). In
the event of any inconsistency between such Rules and these arbitration
provisions, these provisions shall supersede such Rules. All statutes of
limitations which would otherwise be applicable shall apply to any arbitration
proceeding under this paragraph. In any arbitration proceeding subject to this
paragraph, the arbitration panel (the "arbitrator") is specifically empowered to
decide (by documents only, or with a hearing, at the arbitrator's sole
discretion) pre-hearing motions which are substantially similar to pre- hearing
motions to dismiss and motions for summary adjudication. In any such arbitration
proceeding, the arbitrator shall not have the power or authority to award
punitive damages to any party. Judgment upon the
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<PAGE>
award rendered may be entered in any court having jurisdiction. Whenever an
arbitration is required, the parties shall select an arbitrator in the manner
provided in this paragraph. No provision of, nor the exercise of any rights
under, this paragraph shall limit the right of Bank (1) to foreclose against any
real or personal property collateral through judicial foreclosure, by the
exercise of the power of sale under a deed of trust, mortgage or other security
agreement or instrument, pursuant to applicable provisions of the Uniform
Commercial Code, or otherwise herein pursuant to applicable law, (2) to exercise
self-help remedies including but not limited to setoff and repossession, or (3)
to request and obtain from a court having jurisdiction before, during or after
the pendency of any arbitration, provisional or ancillary remedies and relief
including but not limited to injunctive or mandatory relief or the appointment
of a receiver. The institution and maintenance of an action or judicial
proceeding for, or pursuit of, provisional or ancillary remedies or exercise of
self-help remedies shall not constitute a waiver of the right of Bank, even if
Bank is the plaintiff, to submit the Dispute to arbitration if Bank would
otherwise have such right. Whenever an arbitration is required under this
paragraph, the arbitrator shall be selected, except as otherwise herein
provided, in accordance with the Commercial Arbitration Rules of the AAA. A
single arbitrator shall decide any claim of $100,000 or less and he or she shall
be an attorney with at least five years' experience. Where the claim of any
party exceeds $100,000, the Dispute shall be decided by a majority of three
arbitrators, at least two of whom shall be attorneys (at least one of whom shall
have not less than five years' experience representing commercial banks). The
arbitrator shall have the power to award recovery of all costs and fees
(including attorneys' fees, administrative fees, arbitrator's fees, and court
costs) to the prevailing party. In the event of any Dispute governed by this
paragraph, each of the parties shall, subject to the award of the arbitrator,
pay an equal share of the arbitrator's fees.
MAKER AND EACH INDORSER AGREE THAT ANY ACTION, SUIT OR PROCEEDING IN
RESPECT OF OR ARISING OUT OF THIS NOTE MAY BE INITIATED AND PROSECUTED IN THE
STATE OR FEDERAL COURTS, AS THE CASE MAY BE, LOCATED IN NEW YORK COUNTY, NEW
YORK AND ANY ARBITRATION PROCEEDING PURSUANT HERETO SHALL BE CONDUCTED IN NEW
YORK, NEW YORK. MAKER AND EACH INDORSER CONSENT TO AND SUBMIT TO THE EXERCISE OF
JURISDICTION OVER ITS PERSON BY ANY SUCH COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER, WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO
MAKER OR SUCH INDORSER AT ITS ADDRESS SET FORTH BELOW OR TO ANY OTHER ADDRESS AS
MAY APPEAR IN BANK'S RECORDS AS THE ADDRESS OF MAKER OR SUCH INDORSER.
IN ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS
NOTE, BANK, MAKER AND EACH INDORSER WAIVE TRIAL BY JURY, AND MAKER AND EACH
INDORSER ALSO WAIVE (1) THE RIGHT TO INTERPOSE ANY SET-OFF OR COUNTERCLAIM OF
ANY NATURE OR DESCRIPTION, (II) ANY OBJECTION BASED ON FORUM NON CONVENIENS OR
VENUE, AND (III) ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
Bank is authorized to fill in any blank spaces and to otherwise
complete this Note and correct any patent errors herein.
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Copies of all written notices given by Bank to Maker shall be sent to:
1) Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
Attention: Peter M. Ziemba, Esq.
2) Howard E. Steinberg, Esq.
General Counsel
Reliance Group Holdings, Inc.
Park Avenue Plaza
29th Floor
55 East 52nd Street
New York, New York 10055
Wise Partners, L.P.
Name of Maker
By:____________________________________
Signature of Authorized Signatory
Jonathan L. Steinberg, General Partner
---------------------------------------
Print Name and Title
1633 Broadway, 38th Floor
New York, New York 10019
---------------------------------------
Address for Notices
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[If Maker is not a natural person,
indicate the type of entity below]
The Maker signing above is a:
___ partnership organized under
the laws of ___________________
X limited partnership organized
under the laws of Delaware
___ corporation organized under
the laws of ___________________
___ other (specify): ___________
LOANS AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Principal Notation
Date Loan No. Loan Paid Balance Made By
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GUARANTY
AND SECURITY AGREEMENT
Date: December 30, 1997
SECTION 1. Definitions. The following terms have the following meanings unless
otherwise specified herein:
"Bank" means Republic National Bank of New York, a national banking association,
and its successors and assigns, and any Person acting as agent or nominee for
Republic National Bank of New York and any corporation the stock of which is
owned or controlled directly or indirectly by, or is under common control with,
Republic National Bank of New York and/or Republic New York Corporation.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, and any
amendments thereto (Title 11, United States Code).
"Borrower", shall mean Wise Partners, L.P., a Delaware limited partnership (if
more than one, "Borrower" shall mean each, any or all of them).
"Claims" shall mean each "claim" as that term is defined under Section 101(5) of
the Bankruptcy Code.
"Collateral" shall mean all property that secures the payment of the
Obligations, and any Proceeds thereof.
"Guaranty" shall mean this Guaranty and Security Agreement.
"Guarantor" shall mean the undersigned (and if more than one, "Guarantor" shall
mean each, any and all of them, jointly and severally).
"Liabilities" shall mean any and all indebtedness, obligations (whether monetary
or non-monetary) and liabilities of Guarantor to the Bank under this Guaranty,
and all Claims thereon.
"Lien" means any lien, security interest, pledge, hypothecation, or other claim
in or with respect to any Security.
"Obligations" shall mean any and all indebtedness, obligations and liabilities
of the Borrower to the Bank, and all Claims of the Bank against the Borrower,
now existing or hereafter arising, which indebtedness, obligations, liabilities
and Claims arise solely in connection with the $9,000,000 demand grid note of
the Borrower dated December __, 1997 and all extensions and renewals of the
foregoing.
"Person" shall mean any natural person, corporation, partnership, trust,
government or other association or legal entity.
"Proceeds" shall have the meaning assigned to that term by the New York Uniform
Commercial Code, as amended, and also means all "proceeds," "products,"
"offspring," "rents" or "profits" of any property, as such quoted terms are used
in the Bankruptcy Code.
"Security" shall mean any property which secures payment or performance of any
of the Liabilities, and all Proceeds thereof.
SECTION 2. Scope of Guaranty. In consideration of any extension of credit or
other financial accommodation heretofore, now or hereafter made by the Bank to
or for the account of the Borrower, whether voluntary or obligatory, Guarantor
hereby absolutely and unconditionally guarantees to the Bank the prompt and
complete payment and performance when due (whether at stated maturity, by
required prepayment, acceleration, or otherwise) of all Obligations and all
reasonable expenses incurred in collecting or enforcing the same, as more fully
set forth below, all of which conclusively shall be deemed to have been incurred
in reliance upon this
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Guaranty, as if each of the foregoing were the direct and primary legal
responsibility of Guarantor and not the Borrower.
SECTION 3. Security. As Security for the Liabilities of Guarantor, Guarantor
hereby grants to the Bank a continuing lien upon and security interest in, and
hereby pledges, assigns and transfers to the Bank, all right, title and interest
of Guarantor in and to all deposits (general or special) of Guarantor at any
time maintained with the Bank or any branch, subsidiary or affiliate of the
Bank, wherever located, and any substitutions and all products and Proceeds
thereof, and any other property described below, whether now or hereafter
existing or acquired and wherever located, and any substitutions and all
products and Proceeds (including but not limited to insurance proceeds) thereof:
[mark or initial the applicable boxes]
Specific X All of the following property: See Schedule A
Property
Guarantor further grants to the Bank a continuing lien upon and security
interest in, and hereby pledges and assigns to the Bank, all right, title and
interest of Guarantor in and to any and all moneys, securities and any other
property of Guarantor and the Proceeds thereof, now or hereafter actually or
constructively held or received by or in transit to or from the Bank, including
its branches, subsidiaries and affiliates, wherever located, for any purpose,
including, without limitation, for collection, custody, pledge and transmission.
Guarantor hereby authorizes the Bank to sign and file financing statements at
any time with respect to any Security without the signature of Guarantor.
Guarantor will, however, at any time on request of the Bank, sign financing
statements, trust receipts, security agreements or other agreements or
instruments with respect to any Security. Upon Guarantor's failure to do so, the
Bank is authorized, as the agent of Guarantor, to sign (and file, if Bank deems
appropriate) any such instrument. Guarantor agrees to pay all filing fees and to
reimburse the Bank for all costs and expenses of any kind reasonably incurred in
any way in connection with the Security.
The Bank or its nominee may exercise any right of Guarantor with respect to
any Security whether or not any Obligation or Liability is then due and payable
or any default has occurred. In any statutory or non-statutory proceeding,
affecting the Borrower, Guarantor or any Security or any Obligation or
Liability, the Bank or its nominee may, whether or not any Obligation or
Liability is then due and payable or any default shall have occurred, and
regardless of the amount of Obligations or Liabilities, assert, or file a proof
of claim for, the full amount of any such Obligation, Liability or the Security
and vote such claim, for the full amount thereof: (a) for or against any
proposal or resolution; (b) for a trustee or trustees or for a committee of
creditors; or (c) for the acceptance or rejection of any proposed arrangement,
plan of reorganization, wage earners plan, composition or extension, and the
Bank or its nominee may receive any payment or distribution and give acquittance
therefor and may exchange or release any Security. Guarantor agrees that at any
time, whether or not any Obligation or Liability is then due and payable or any
default shall have occurred, the Bank shall have the right to notify any account
debtor (with respect to any Security consisting of Accounts), or the obligor on
any Instrument or other right or claim of Guarantor to any payment which is
Security, to make payment directly to the Bank, whether or not any default shall
have occurred and whether or not Guarantor was theretofore making collections on
such Security, and also to take control of any Proceeds the Bank is entitled to
under Section 9-306 of the New York Uniform Commercial Code. If any Security
consists of Accounts, Instruments or other rights or claims of Guarantor to any
payment, then at the Bank's request Guarantor shall promptly notify (in manner,
form and substance satisfactory to the Bank) all Persons obligated to Guarantor
under any such Accounts, Instruments or other rights or claims of Guarantor to
any payment that the Bank possesses a security interest in such Accounts,
Instruments or other rights or claims of Guarantor to any payment and that all
payments in respect of such Accounts, Instruments or other rights or claims of
Owner to any payment are to be made directly to the Bank. Guarantor shall not
settle, compromise or adjust any disputed amount, or allow any credit, rebate or
discount with respect to any Account, Instrument or other right
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<PAGE>
or claim of Guarantor to any payment which constitutes Security under this
Guaranty. After the Bank shall have given any notice to an account debtor of the
type specified above, any and all accounts recovered by Guarantor from the
account debtor or other obligor so notified shall be promptly remitted to the
Bank, and until so remitted shall be segregated by Guarantor and held in trust
for the Bank.
Any and all stocks, bonds or other securities of Guarantor at any time held
by the Bank hereunder may, with notice, when an event of default exists
hereunder, be registered in the name of the Bank or its nominee without
disclosing that the Bank is a pledgee. The Bank or such nominee (when an event
of default exists hereunder and regardless of the amount of Obligations or
Liabilities) may, with notice, exercise all voting and Corporate rights at any
meeting of any corporation issuing such stocks, bonds or other securities, and
exercise any and all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to such stocks, bonds or other
securities as if the absolute owner thereof, including without limitation the
right to exchange, at its discretion, any and all of such stocks, bonds or other
securities for other stocks, bonds, securities or any other property upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
any corporation issuing the same or upon the exercise by the issuing corporation
or the Bank of any right, privilege or option pertaining to such stocks, bonds,
or other securities, and in connection therewith, to deposit and deliver any and
all of such stocks, bonds or other securities with any committee, trustee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine, all without liability except to account for
property actually received by it. If Guarantor, as registered holder of any
security, shall become entitled to receive or does receive any stock
certificate, option or right, in substitution of, or in exchange for, such
security, or otherwise, Guarantor agrees to accept same as the Bank's agent and
to hold same in trust for the Bank, and to forthwith deliver the same to the
Bank in the exact form received, with Guarantor's endorsement when necessary, to
be held by the Bank as Security.
Guarantor recognizes that the Bank may be unable to effect a public sale of
any securities which may constitute a portion of the Security by reason of
certain prohibitions contained in the Securities Act of 1933 and applicable
state securities laws and instead may resort to one or more private sales of
such Security to a restricted group of purchasers who would be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Guarantor
recognizes and agrees that, because of this restriction, sales of securities may
result in prices and other terms less favorable to the seller than if the
disposition were made pursuant to a public sale and, notwithstanding such
circumstances, agrees that any such private or limited sale or sales shall be
deemed to have been made in a commercially reasonable manner. The Bank shall be
under no obligation to delay a sale of any of the securities constituting part
of the Security for the period of time necessary to permit the issuer of such
securities to register them for public sale under the Securities Act of 1933 or
under applicable state securities laws.
To the extent permitted by applicable law, the Bank or its nominee is hereby
given a right of setoff for the amount of the Liabilities upon any of and all
said deposits and any credits of Guarantor with, and any and all claims of
Guarantor against, the Bank at any time existing and the Bank is hereby
authorized to setoff and apply such deposits, credits and claims, without prior
notice or demand, to the Liabilities in such order and amounts as the Bank may
elect.
Guarantor shall, upon request of the Bank, assemble the Security and make it
available to the Bank at a place to be designated by the Bank which is
reasonably convenient to the Bank and Guarantor. The Bank will give Guarantor
notice of the time and place of any public sale of the Security or of the time
after which any private sale or any other intended disposition thereof is to be
made by sending notice, as provided below, at least five days before the time of
the sale or disposition, which provisions for notice Guarantor agrees are
reasonable. No such notice need be given by the Bank with respect to Security
which is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. Guarantor shall remain liable to the
Bank for the payment of any deficiency with interest thereon at the highest rate
applicable to the Obligations, or if no rate is specified with respect to such
Obligations, at the then legal rate of interest.
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<PAGE>
Guarantor will do all such other acts and things and will execute and
deliver all such other instruments and documents, including further security
agreements, pledges, endorsements, assignments, and notices as the Bank may
reasonably deem necessary or advisable from time to time in order to perfect and
preserve the Liens created by this Guaranty and will, at its own cost and
expense, cause such Lien to be perfected and continue to be perfected and to be
and remain prior to all other Liens. The Bank, acting through its officers,
employees and authorized agents, is hereby irrevocably appointed the
attorney-in-fact of Guarantor to do, at Guarantor's expense, all acts and things
which the Bank may reasonably deem necessary or advisable to preserve, perfect,
continue to perfect and/or maintain the priority of such Liens, including the
signing of financing, continuation or other similar statements and notices on
behalf of Guarantor, and which Guarantor is required to do by the terms of this
Guaranty. Guarantor hereby authorizes the Bank to sign and file financing
statements with respect to the Security without the signature of Guarantor.
Guarantor shall pay all filing fees for financing statements with respect to the
Security.
SECTION 4. Reinstatement. If after receipt of any payment of or proceeds of
Security applied (or intended to be applied) to the payment of, all or any part
of the Obligations, the Bank is for any reason compelled to surrender or
voluntarily surrenders, such payment or proceeds to any person, (a) because such
payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference,
fraudulent conveyance, impermissible setoff or a diversion of trust funds; or
(b) for any other reason, including without limitation (i) any judgment, decree
or order of any Court or administrative body having jurisdiction over the Bank
or any of its property, or (ii) any settlement or compromise of any such claim
effected by the Bank with any such claimant (including the Borrower), then the
Obligations or part thereof intended to be satisfied shall be reinstated and
continue and this Guaranty shall continue in full force as if such payment or
proceeds had not been received by the Bank, notwithstanding any revocation
thereof or the cancellation of any note or other instrument evidencing any
Obligation or otherwise; and Guarantor shall be liable to pay to the Bank, and
hereby does indemnify the Bank and hold the Bank harmless for, the amount of
such payment or proceeds so surrendered and all expenses (including all
attorneys' fees, court costs and expenses attributable thereto) incurred by the
Bank in the defense of any claim made against the Bank that any payment or
proceeds received by the Bank in respect of all or any part of the Obligations
must be surrendered. The provisions of this Section 4 shall survive the
termination of this Guaranty, and any satisfaction and discharge of the Borrower
by virtue of any payment, court order or any federal or state law.
SECTION 5. Waiver. Guarantor hereby waives (a) notice of acceptance of this
Guaranty and all notice of the creation, extension or accrual of any of the
Obligations; (b) presentment and protest; (c) notice of any other nature
whatsoever, except for notices specifically provided for in this Guaranty or
which may not be waived under applicable law; (d) any requirement that the Bank
file any claim in the event of the bankruptcy of the Borrower; or (e) failure to
exercise or enforce the Bank's rights under any other guaranties of or security
for the Obligations; and Guarantor further agrees that this Guaranty will not be
discharged (subject to the provisions contained in Section 11) except by
complete performance of all Obligations of the Borrower and the Liabilities of
Guarantor hereunder. **See Addendum to this Section 5.
SECTION 6. Consent. Guarantor hereby consents that from time to time, and
without further notice to or consent of Guarantor, the Bank may take any or all
of the following actions without diminishing, releasing or otherwise affecting
the liability of Guarantor to pay and perform under this Guaranty: (a) extend,
renew, modify, compromise, settle or release the Obligations (including without
limitation any increase or decrease in the interest rate); (b) release or
compromise any liability of any party or parties with respect to Obligations;
(c) release its security interest in any or all of the Collateral or exchange,
surrender, or otherwise deal with the Collateral as the Bank may determine; or
(d) exercise or refrain from exercising any right or remedy of the Bank against
any person or property.
SECTION 7. Guaranty Absolute. The liability of Guarantor under this Guaranty
shall be absolute and unconditional irrespective of any lack of validity,
regularity or enforceability of the Obligations or any note, instrument or
agreement evidencing the same or relating thereto, the acceptance of additional
guarantees or
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<PAGE>
collateral or the termination, by operation of law or otherwise, of the
liability of anyone with respect to the Obligations, or any other circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Borrower.
SECTION 8. [Deleted]
SECTION 9. Expenses. Guarantor hereby agrees to pay any and all expenses
reasonably incurred by the Bank in enforcing any rights under this Guaranty or
in defending any of its rights or any amounts received hereunder. Without
limiting the foregoing, Guarantor agrees that whenever any attorney is used by
the Bank to obtain payment hereunder, to advise it as to its rights, to
adjudicate the rights of the parties hereunder or for the defense of any of its
rights or amounts received hereunder, the Bank shall be entitled to recover all
reasonable attorneys' fees, court costs, and expenses attributable thereto.
SECTION 10. Binding Effect. Except to the extent it may be terminated in
accordance with Section 11, this Guaranty shall remain in full force and effect
and shall be binding upon Guarantor, its successors and assigns, in accordance
with its terms, notwithstanding any increase, decrease or change in the partners
of Guarantor, if it should be a partnership, or the merger, consolidation, or
reorganization of Guarantor, if it be a corporation, or any other change
concerning the form, structure or substance of any such entity.
SECTION 11. Continuing Guaranty; Termination. This Guaranty is a continuing
guaranty, which shall remain in effect until notice of termination in writing
from Guarantor is actually received by the Bank at the Bank's address set forth
below. Such termination will be effective only with respect to all Obligations
incurred or contracted by the Borrower or acquired by the Bank after the date on
which such notice is so received, but this Guaranty shall remain in full force
and effect as to all Obligations existing at the date of receipt of such notice,
including all renewals, compromises, modifications, extensions and other
amendments relating thereto, all interest thereon and collection expenses
therefor, until full payment of such Obligations to the Bank.
SECTION 12. Obligations Deemed to Become Due. If the Borrower or Guarantor makes
an assignment for the benefit of creditors or a trustee or receiver is appointed
for the Borrower or Guarantor or for any of its property; or any proceeding by
or against the Borrower or Guarantor (or any other guarantor), under any
bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of
debt, receivership, liquidation or dissolution law or statute is commenced; or
Guarantor fails to furnish to the Bank such financial information concerning
Guarantor as the Bank may from time to time request; or Bank shall in good faith
determine that there has been a material adverse change in Guarantor's or the
Borrower's net worth or in good faith deem itself insecure with respect to
Guarantor's or the Borrower's financial condition or ability to pay the
Liabilities or Obligations, as the case may be, then all Obligations, regardless
of their terms, for the purposes of this Guaranty, together with all
Liabilities, shall be immediately due and payable, notwithstanding the absence
of any default by the Borrower under any of the Obligations.
SECTION 13. [Deleted]
SECTION 14. Notices. Each notice or other communication hereunder shall be in
writing, shall be sent by messenger, by first class mail or by facsimile
transmitter, and shall be effective when received, and shall be sent as follows:
If to the Guarantor, to the address set forth below its signature or such
other address as it may designate, by written notice to the Bank as herein
provided or such other address as may appear in the records of the Bank.
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<PAGE>
If to the Bank, to the following address:
Republic National Bank of New York
452 Fifth Avenue
New York, New York 10018
Attention: Loan Department
or such other address as it may designate, by written notice to the Guarantor as
herein provided. **See Addendum to this section 14.
SECTION 15. Other Guarantees; Amendments. The execution and delivery hereafter
to the Bank by Guarantor of a new instrument of guarantee shall not terminate,
supersede or cancel this instrument, unless expressly provided therein, and this
instrument shall not terminate, supersede or cancel any instrument of guarantee
previously delivered to the Bank by Guarantor, and all rights and remedies of
the Bank hereunder or under any instrument of guarantee hereafter or heretofore
executed and delivered to the Bank by Guarantor shall be cumulative and may be
exercised singly or concurrently. This Guaranty may be amended only by a writing
executed by Guarantor and a duly authorized officer of the Bank.
SECTION 16. No Waiver; Cumulative Remedies. No delay on the part of the Bank in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. NO WAIVER OF ANY PROVISION OF THIS
GUARANTY IS EFFECTIVE UNLESS MADE IN WRITING AND EXECUTED BY A DULY AUTHORIZED
OFFICER OF THE BANK. All rights and remedies hereunder are cumulative and may be
exercised singly or concurrently.
SECTION 17. Statute of Limitations. Any acknowledgment, new promise, payment of
principal or interest or other act by the Borrower or others with respect to the
Obligations shall be deemed to be made as agent of Guarantor, and shall, if the
statute of limitations in favor of Guarantor against the Bank shall have
commenced to run, toll the running of such statute of limitations, and if such
statute of limitations shall have expired, prevent the operation of such
statute.
SECTION 18. Governing Law; Consent to Jurisdiction; Service of Process. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York made and to be performed wholly within that State. Guarantor
hereby consents to the jurisdiction of the courts of the State of New York and
the courts of the United States of America for the Southern District of New York
and consents that any' action or proceeding hereunder may be brought in such
courts, and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same; and authorizes the service of process on Guarantor by registered or
certified mail sent to its address as set forth in Section 14.
SECTION 19. RIGHT OF BANK TO ARBITRATE DISPUTES.
(a) GUARANTOR AGREES THAT ANY ACTION, DISPUTE, PROCEEDING, CLAIM OR CONTROVERSY
BETWEEN OR AMONG GUARANTOR AND THE BANK WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT THE BANK'S ELECTION, WHICH
ELECTION MAY BE MADE AT ANY TIME PRIOR TO THE COMMENCEMENT OF A JUDICIAL
PROCEEDING BY THE BANK, OR IN THE EVENT OF A JUDICIAL PROCEEDING INSTITUTED
BY GUARANTOR AT ANY TIME PRIOR TO THE LAST DAY TO ANSWER AND/OR RESPOND TO
A SUMMONS AND/OR COMPLAINT MADE BY GUARANTOR, BE RESOLVED BY ARBITRATION IN
NEW YORK, NEW YORK IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 19 AND
SHALL, AT THE ELECTION OF THE BANK, INCLUDE ALL DISPUTES ARISING OUT OF OR
IN CONNECTION WITH (I) THIS GUARANTY OR ANY RELATED AGREEMENTS OR
INSTRUMENTS, (II) ALL PAST, PRESENT AND FUTURE AGREEMENTS INVOLVING
GUARANTOR AND THE BANK,
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(III) ANY TRANSACTION CONTEMPLATED HEREBY AND ALL PAST, PRESENT AND FUTURE
TRANSACTIONS INVOLVING GUARANTOR AND THE BANK, AND (IV) ANY ASPECT OF THE
PAST, PRESENT OR FUTURE RELATIONSHIP OF GUARANTOR AND THE BANK. Bank may
elect to require arbitration of any such Dispute with Guarantor without
thereby being required to arbitrate all Disputes between the Bank and
Guarantor. Any such dispute shall be resolved by binding arbitration in
accordance with Article 75 of the New York Civil Practice Law and Rules and
the commercial arbitration rules of the American arbitration association
("AAA"). In the event of any inconsistency between such Rules and these
arbitration provisions, these provisions shall supersede such Rules. All
statutes of limitations which would otherwise be applicable shall apply to
any arbitration proceeding under this subsection 19(a). In any arbitration
proceeding subject to these provisions, the arbitration panel (the
"arbitrator") is specifically empowered to decide (by documents only, or
with a hearing, at the arbitrator's sole discretion) pre-hearing motions
which are substantially similar to pre-hearing motions to dismiss and
motions for summary adjudication. In any such arbitration proceeding, the
arbitrator shall not have the power or authority to award punitive damages
to any party. Judgment upon the award rendered may be entered in any court
having jurisdiction. Whenever an arbitration is required, the parties shall
select an arbitrator in the manner provided in subsection 19(d).
(b) No provision of, nor the exercise of any rights under, subsection 19(a)
shall limit the right of any party (i) to foreclose against any real or
personal property collateral through judicial foreclosure, by the exercise
of a power of sale under a deed of trust, mortgage or other security
agreement or instrument, pursuant to applicable provisions of the Uniform
Commercial Code, or otherwise pursuant to applicable law, (ii) to exercise
self help remedies including but not limited to setoff and repossession, or
(iii) to request and obtain from a court having jurisdiction before, during
or after the pendency of any arbitration, provisional or ancillary remedies
and relief including but not limited to injunctive or mandatory relief or
the appointment of a receiver. The institution and maintenance of an action
or judicial proceeding for, or pursuit of, provisional or ancillary
remedies or exercise of self help remedies shall not constitute a waiver of
the right of the Bank, even if the Bank is the plaintiff, to submit the
Dispute to arbitration if the Bank would otherwise have such right.
(c) The Bank may require arbitration of any Dispute(s) concerning the
lawfulness, unconscionableness, propriety, or reasonableness of any
exercise by the Bank of its right to take or dispose of any Collateral or
its exercise of any other right in connection with Collateral including,
without limitation, judicial foreclosure, exercising a power of sale under
a deed of trust or mortgage, obtaining or executing a writ of attachment,
taking or disposing of property with or without judicial process pursuant
to Article 9 of the Uniform Commercial Code or otherwise as permitted by
applicable law, notwithstanding any such exercise by the Bank.
(d) Whenever an arbitration is required under subsection 19(a), the arbitrator
shall be selected, except as otherwise herein provided, in accordance with
the Commercial Arbitration Rules of the AAA. A single arbitrator shall
decide any claim of $100,000 or less and he or she shall be an attorney
with at least five years' experience. Where the claim of any party exceeds
$100,000, the Dispute shall be decided by a majority vote of three
arbitrators, at least two of whom shall be attorneys (at least one of whom
shall have not less than five years' experience representing commercial
banks).
(e) In the event of any Dispute governed by this Section 19, each of the
parties shall, subject to the award of the arbitrator, pay an equal share
of the arbitrator's fees. The arbitrator shall have the power to award
recovery of all costs and fees (including attorneys' fees, administrative
fees, arbitrator's fees, and court costs) to the prevailing party.
SECTION 20. Severability. If any one or more of the provisions contained in this
Guaranty or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein shall
not (to the full extent permitted by law) in any way be affected or impaired.
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<PAGE>
SECTION 21. Headings. The descriptive headings used in this Guaranty are for
convenience only and shall not be deemed to affect the meaning or construction
of any provision hereof.
SECTION 20. WAIVER OF TRIAL BY JURY. EACH OF THE BANK AND GUARANTOR HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS GUARANTY OR THE OBLIGATIONS.
SECTION 21. WAIVER OF CERTAIN OTHER RIGHTS. GUARANTOR HEREBY WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE BASED UPON ANY CLAIMS OF LACHES OR SET-OFF OR COUNTERCLAIM
OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM NON CONVENIENS OR
VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
IN WITNESS WHEREOF the Guarantor(s) has/have executed this Guaranty and Security
Agreement.
[SEAL]
/s/
-----------------------------
Saul P. Steinberg
/s/
-----------------------------
Jonathan L. Steinberg
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<PAGE>
SCHEDULE AND ADDENDA
TO
GUARANTY AND SECURITY AGREEMENT
DATED AS OF DECEMBER 30, 1997
OF
JONATHAN L. STEINBERG AND SAUL P. STEINBERG
TO
REPUBLIC NATIONAL BANK OF NEW YORK
Schedule A - Property constituting Security
A. Deposited by Jonathan L. Steinberg:
55,000 Shares of Common Stock of Individual Investor Group, Inc. ("IIGI")
B. Deposited by Saul P. Steinberg:
500,000 Shares of Common Stock of IIGI
1,650,000 Shares of Common Stock of Reliance Group Holdings, Inc.
Addendum to Section 5
Bank hereby agrees to seek payment of the Obligation, first by making demand for
payment from the Borrower, second by demanding payment from the Guarantors under
this Guaranty and then by selling the Security.
Addendum to Section 14
With respect to any notice relating to a default of the Borrower or any
Guarantor or to the sale of any Security hereunder, Bank shall attempt to give
oral notice of such default by placing a telephone call to Jonathan L. Steinberg
(212-843-2744) and to Saul P. Steinberg (212-909-1100). However, the failure of
the Bank to reach either or both of these individuals by telephone shall not
prevent the Bank from exercising any of its rights under law or this Guaranty.
Copies of all written notices given by Bank to the Guarantors shall be sent to:
Graubard Mollen & Miller Howard E. Steinberg, Esq.
600 Third Avenue General Counsel
New York, New York 10016 Reliance Group Holdings, Inc.
Attention: Peter M. Ziemba, Esq. Park Avenue Plaza
Tel No: (212) 818-8667 55 East 52nd Street
New York, New York 10055
Tel No: (212) 909-1100
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<PAGE>
RIDER
TO
GUARANTY AND SECURITY AGREEMENT
DATED AS OF DECEMBER 30, 1997
OF
JONATHAN L. STEINBERG AND SAUL P. STEINBERG
TO
REPUBLIC NATIONAL BANK OF NEW YORK
A. This Rider constitutes part of the Guaranty and Security Agreement,
dated as of April 22, 1996, of Jonathan L. Steinberg and Saul P. Steinberg to
Republic National Bank of New York, to which this Rider is attached. Capitalized
terms that are used but are not defined in this Rider are used as they are
defined in the printed portion of said Guaranty and Security Agreement (the
"Printed Text"). In the event of any conflict between the Printed Text and this
Rider, the terms set forth in this Rider shall control (except to the extent
that the printed Text includes any typewritten changes, in which case the
Printed Text as so changed shall control). Reference to this Guaranty, and like
references, whether appearing in the Printed Text, any Addendum (including the
schedule and addenda, the "Addendum") or in this Rider, shall mean the Printed
Text, any such Addendum and this Rider, and shall include the same as
supplemented, modified, amended or restated from time to time in accordance with
the terms of this Guaranty.
B. Each Guarantor represents and warrants to Bank, severally as to
himself only and not jointly and only as to any Collateral pledged by him, as to
each of the matters set forth below: (a) such Guarantor has the full legal
capacity, power and authority to execute and deliver this Guaranty and to
perform all of such Guarantor's obligations hereunder; and (b) this Guaranty is
the legal, valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms and provisions. Each Guarantor
further represents, warrants and covenants, severally as to himself only and not
jointly and only as to any Collateral pledged by him, that the following are
true and correct at present and at all times while any Obligations are
outstanding the following will be true and correct; such Collateral (i) is and
will be owned of record (unless in the name of Bank's nominee) and beneficially
solely by the undersigned (except as otherwise provided in this Guaranty) with
good and marketable title thereto, free and clear of any lien, security
interest, charge or encumbrance, except that the Bank will have a valid first
priority security interest therein, (ii) is and will be duly and validly issued,
fully paid and non-assessable (iii) in the case of Jonathan L. Steinberg, the
13,000, 20,000, 18,000 and 4,000 shares of Common Stock of Individual Investor
Group, Inc. pledged by him as Collateral were acquired by him in open market
purchase transactions on January 11, 1995, May 17, 1995, May 22, 1995 and May
23, 1995, respectively, and are not "restricted securities" under Rule 144
("Rule 144") promulgated by the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "Act"); and (iv) in the case
of Saul P. Steinberg, all Collateral pledged by him has been beneficially owned
by him for a period of at least three (3) years determined in accordance with
paragraph (d) of Rule 144.
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<PAGE>
C. Without limiting the generality of any other provision of this
Guaranty, Bank shall have, and shall be entitled to exercise, all the right and
remedies granted to a secured party under the New York Uniform Commercial Code,
except as otherwise expressly provided in this Guaranty. To the extent waiver is
not limited under applicable law, each Guarantor hereby expressly waives each
and every claim or defense, and agrees that such Guarantor will not assert or
pursue (by action, suit, counterclaim or otherwise) any claim or defense,
respecting (i) the selection or order of disposition of the Collateral (which
may be as to such Collateral, and in any order, Bank may select in its
reasonable discretion, and may be without regard to any holding period or tax
basis that any person may have therein), (ii) the private sale of any shares of
Individual Investor Group, Inc., whether or not any public market exists and
regardless of the availability of any registration statement or of Rule 144,
(iii) the choice or timing of any sale date (which Bank may select in its
reasonable discretion), irrespective of whether greater sale proceeds would be
realizable on a different sale date, (iv) the adequacy of the sale price of any
shares of Individual Investor Group, Inc., (v) any insufficiency of the proceeds
to fully satisfy the Liabilities or (vi) any sale of shares of Individual
Investor Group, Inc., to the first person to receive an offer or make a bid or
the selection of any purchaser of those shares (which may be restricted, in
Bank's discretion, to purchasers or prospective purchasers by number, class,
nature and investment intention) or any default by any such purchaser; provided
that such dispositions are effected in a commercially reasonable manner. In
enforcing its remedies, Bank may sell pledged shares of Reliance Group Holdings,
Inc. only through public markets.
D. In enforcing its rights in accordance with Addendum to Section 5,
and without limiting the rights of Bank under the Printed Text, but subject
however to the provisions of the Addendum and to any typewritten provisions in
the Printed Text, Bank may take (and/or may cause one or more of its designees
to take) any or all of the following actions, all without notice to the
Guarantor or any other person (except as may otherwise be required in this
Guaranty or by applicable law), with a single notice (if required or otherwise
given, and except as otherwise required under the Addendum) being sufficient to
entitle Bank from time to time thereafter to take any one or more of the actions
described below; to sell, assign, lease or otherwise dispose of the whole of, or
from time to time any part of, the Collateral, or offer or agree to do so, in
any established market or, in the case of shares of Individual Investor Group,
Inc., private sale or public auction or sale (with or without demand on the
Guarantor or any advertisement or other notice of the time, place or terms of
sale, and with or without any reserve or minimum bid price, whether disclosed or
undisclosed) for cash and upon such other terms and subject to such other
conditions as Bank in its reasonable discretion may determine, and the Bank may
postpone or adjourn any such auction, sale or other disposition or cause the
same to be postponed or adjourned from time to time to a subsequent time and
place, or to abandon or cause the abandonment of the same, all without any
advertisement or other notice thereof, and to carry out any agreement to sell
any item or items of the Collateral in accordance with the terms and provisions
of such agreement, notwithstanding that, after Bank shall have entered into such
an agreement, all of the Liabilities may have been paid and satisfied in full.
Any sale of Collateral conducted in conformity with reasonable commercial
practices of banks disposing of similar collateral shall be deemed to be
commercially reasonable for all purposes of this Guaranty.
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E. This Rider may be executed in one or more counterparts which, taken
together, shall constitute one and the same instrument and each of which shall
be deemed an original.
IN WITNESS WHEREOF, the Guarantor has executed and delivered this
Guaranty for the benefit of Bank as of the date set forth in the Printed Text.
/s/
---------------------------------
Jonathan L. Steinberg
/s/
----------------------------------
Saul P. Steinberg
Acknowledged and Agreed:
REPUBLIC NATIONAL BANK OF NEW YORK
By: /s/
---------------------------------------
Mary Agnes Pan, First Vice President
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