EXHIBIT 10.15
Continuing Guaranty dated February 18, 2000 between Bank of America, NA and Greg
Manning
Bank of America, National Association
Continuing Guaranty
BORROWER: SPECTRUM NUMISMATICS
INTERNATIONAL, INC.
GUARANTOR: GREG MANNING
To: BANK OF AMERICA, NATIONAL
ASSOCIATION
231 South LaSalle Street
Chicago. Illinois 60697
I. Guaranty of Payment. For value received and in consideration of any loan or
other financial accommodation heretofore, now or hereafter at any time made or
granted to Spectrum Numismatics International, Inc. (the "Borrower") by BANK OF
AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns, the
"Bank"), 231 South LaSalle Street, Chicago, Illinois 60697, the undersigned
(the "Guarantor") hereby unconditionally guarantees the full and prompt payment
when due, whether by acceleration or otherwise, and at all times thereafter, of
all obligations of the Borrower to the Bank, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, or now or
hereafter existing, or due or to become due (all such obligations being
hereinafter collectively called the "Liabilities"), and the Guarantor further
agrees to pay all expenses and attorneys' fees, including the allocated cost of
in-house counsel, paid or incurred by the Bank in endeavoring to collect the
Liabilities, or any part thereof, and in enforcing this Guaranty. 2.
Acceleration of the Time of Payment of Amount Payable Under the Guaranty. The
Guarantor agrees that, in the event of the death, incompetency, dissolution or
insolvency of the Borrower or the Guarantor, or the inability of the Borrower
or the Guarantor to pay debts as they mature, or an assignment by the Borrower
or the Guarantor for the benefit of creditors, or the institution of any
proceeding by or against the Borrower or the Guarantor alleging that the
Borrower or the Guarantor is insolvent or unable to pay debts as they mature,
and if such event occurs at a time when any of the Liabilities may not then be
due and payable, the Guarantor will pay to the Bank forthwith the full amount
which would be payable hereunder by the Guarantor if all Liabilities were then
due and payable.
3. Security Interest in Deposits and Other Property. To secure all obligations
of the Guarantor hereunder, the Guarantor hereby grants to the Bank a lien upon
and security interest in any and all balances, credits, deposits (general or
special, time or demand, provisional or final), accounts or moneys of or in the
name of the Guarantor now or hereafter with the Bank and any and all property
of every kind or description of or in the name of the Guarantor now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, the Bank or any agent or bailee for the Bank (the
"Collateral"). The Bank may, without demand or notice of any kind, at any time
and from time to time when any amount is due and payable by the Guarantor
hereunder, appropriate the Collateral and apply it toward the payment of such
amount.
4. Continuing Guaranty. This Guaranty is a continuing, absolute and
unconditional Guaranty, and will remain in full force and effect
(notwithstanding, without limitation, the death, incompetency or dissolution of
the Guarantor or that at any time or from time to time all Liabilities may have
been paid in full), subject to discontinuance only upon actual receipt by the
Bank of written notice from the Guarantor, or any person duly authorized and
acting on behalf of the Guarantor, of the discontinuance hereof; provided,
however, that no such notice of discontinuance will affect or impair any of the
agreements and obligations of the Guarantor hereunder with respect to any and
all Liabilities existing prior to the time of actual receipt of such notice by
the Bank, any and all Liabilities created or acquired thereafter pursuant to
any previous commitments made by the Bank, any and all extensions or renewals
of any of the foregoing, any and all interest on any of the foregoing, and any
and all expenses paid or incurred by the Bank in endeavoring to collect any of
the foregoing and in enforcing this Guaranty against the Guarantor; and all of
the agreements and obligations of the Guarantor under this Guaranty will,
notwithstanding any such notice of discontinuance, remain fully in effect until
all such Liabilities (including any extensions or renewals of any thereof) and
all such interest and expenses have been paid in full.
5. Recision or Return of Payment on Liabilities. The Guarantor further agrees
that, if at any time all or any part of any payment theretofore applied by the
Bank to any of the Liabilities is or must be rescinded or returned by the Bank
for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Borrower), such Liabilities are, for the
purposes of this Guaranty, to the extent that such payment is or must be
rescinded or returned, deemed to have continued in existence, notwithstanding
such application by the Bank, and this Guaranty will continue to be effective or
be reinstated, as the case may be, as to such Liabilities, all as though such
application by the Bank had not been made.
6. Bank Permitted to Take Certain Actions. The Bank may, from time to time (but
is not obligated to), whether before or after any discontinuance of this
Guaranty, at its sole discretion and without notice to the Guarantor, take any
or all of the following actions: (a) receive a security interest in any
property to secure any of the Liabilities or any obligation hereunder; (b)
retain or obtain the primary or secondary obligation of any obligor or
obligors, in addition to the Guarantor, with respect to any of the Liabilities;
(c) extend or renew for one or more periods (whether or not longer than the
original period), alter or exchange any of the Liabilities, or release or
compromise any obligation of the Guarantor hereunder or any obligation of any
nature of any other obligor with respect to any of the Liabilities; (d) release
its security interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Liabilities
or any obligation hereunder, or extend or renew for one or more periods
(whether or not longer than the original period) or release, compromise, alter
or exchange any obligations of any nature of any obligor with respect to any
such property; and (e) resort to the Guarantor for payment of any of the
Liabilities, whether or not the Bank (i) has resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) has proceeded
against any other obligor primarily or secondarily obligated with respect to
any of the Liabilities (all of the actions referred to in preceding clauses (i)
and (ii) being hereby expressly waived by the Guarantor). 7. Application of
Payments. Any amounts received by the Bank from whatsoever source on account of
the Liabilities may be applied by it toward the payment of such of the
Liabilities, and in such order of application, as the Bank may from time to
time elect.
8. Subrogation. Until such time as this Guaranty has been discontinued and the
Bank has received payment of the full amount of all Liabilities and of all
obligations of the Guarantor hereunder, no payment made by or for the account
of the Guarantor pursuant to this Guaranty entitles the Guarantor by
subrogation or otherwise to any payment by the Borrower or from or out of any
property of the Borrower, and the Guarantor will not exercise any right or
remedy against the Borrower or any property of the Borrower by reason of any
performance by the Guarantor of this Guaranty.
9. Waiver of Notice and Other Matters. The Guarantor hereby expressly waives:
(a) notice of the acceptance by the Bank of this Guaranty; (b) notice of the
existence or creation or non-payment of all or any of the Liabilities; (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever; and (d) all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
10. Covenants of Guarantor. The Guarantor covenants and agrees with the Bank
that Guarantor: (a) shall provide to the Bank, within 60 days of each December
31, the Guarantor's annual financial statements in a form satisfactory to the
Bank; (b) shall provide to the Bank, within 15 days of filing, copies of the
Guarantor's federal income tax returns (with all forms K-l attached), and if
requested by the Bank, copies of any extensions of the filing date; (c) shall
not incur or permit to exist any indebtedness or liens, except (i) the amount
of indebtedness in existence on the date of this Guaranty disclosed to the Bank
in Guarantor's financial statement dated November 30, 1999, (ii) additional
debts of the undersigned for consumer purposes which do not exceed a total
principal amount of $250,000, (iii) additional debt subordinated to the Bank,
or (iv) any liens related to the foregoing, unless consented to in writing by
the Bank; (d) shall promptly notify the Bank in writing of any lawsuit over
$500,000 against Guarantor; (e) shall maintain a Net Worth (as hereinafter
defined) of not less than $20,000,000; (f) shall not pledge, assign, encumber
or otherwise transfer ownership of Guarantor's stock in Greg Manning Auctions,
Inc. ("GMAI"), which stock in the aggregate exceeds nine percent (9%) of the
total issued and outstanding stock of GMAI; and (g) shall not sell, assign or
otherwise transfer the Guarantor's interest in the stock of GMAI, unless
consented to in writing by the Bank. For the purposes hereof, "Net Worth" means
the gross fair market value of the Guarantor's assets (excluding all
intangibles, goodwill, patents, trademarks, copyrights, trade names, start-up
costs, non-compete covenants, and other like intangibles, and monies due from
the guarantors of the obligations of the Guarantor) plus liabilities
subordinated to the Bank in a manner acceptable to the Bank (using the Bank's
standard form) less total liabilities, including but not limited to estimated
taxes on asset appreciation and any reserves or offsets against assets. 11.
Assignment of Liabilities. The Bank may, from time to time, whether before or
after any discontinuance of this Guaranty, without notice to the Guarantor,
assign or transfer any or all of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities will remain Liabilities for the purposes of
this Guaranty, and each and every immediate and successive assignee or
transferee of any of the Liabilities or of any interest therein will, to the
extent of the interest of such assignee or transferee in the Liabilities, be
entitled to the benefits of this Guaranty to the same extent as if such
assignee or transferee were the Bank; provided, however, that, unless the Bank
otherwise consents in writing, the Bank has an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Guaranty,
for the benefit of the Bank, as to those of the Liabilities which the Bank has
not assigned or transferred. 12. Information Concerning the Borrower. The
Guarantor hereby warrants to the Bank that the Guarantor now has and will
continue to have independent means of obtaining information concerning the
affairs, financial condition and business of the Borrower. The Bank has no duty
or responsibility to provide the Guarantor with any credit or other information
concerning the affairs, financial condition or business of the Borrower which
may come into the Bank's possession.
13. Waiver and Modifications. No delay on the part of the Bank in the exercise
of any right or remedy will operate as a waiver thereof, and no single or
partial exercise by the Bank of any right or remedy will preclude other or
further exercise thereof or the exercise of any other right or remedy; nor will
any modification or waiver of any of the provisions of this Guaranty be binding
upon the Bank except as expressly set forth in a writing duly signed and
delivered on behalf of the Bank. 14. Obligations Under Guaranty. No action of
the Bank permitted hereunder will in any way affect or impair the rights of the
Bank and the obligations of the Guarantor under this Guaranty. For the purposes
of this Guaranty, Liabilities include all obligations of the Borrower to the
Bank, notwithstanding any right or power of the Borrower or anyone else to
assert any claim or defense as to the invalidity or unenforceability of any
such obligation, and no such claim or defense will affect or impair the
obligations of the Guarantor hereunder. The obligations of the Guarantor under
this Guaranty are absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable discharge or defense of
the Guarantor. The Guarantor hereby acknowledges that there are no conditions
to the effectiveness of this Guaranty.
15. Successors. This Guaranty is binding upon the Guarantor, and upon the
heirs, legal representatives, successors and assigns of the Guarantor; and to
the extent that the Borrower or the Guarantor is either a partnership or a
corporation, all references herein to the Borrower and to the Guarantor,
respectively, are deemed to include any successor or successors, whether
immediate or remote, to such partnership or corporation.
16. Law. This Guaranty has been delivered in Chicago, Illinois, and will
be construed in accordance with and governed by the internal laws of the
State of Illinois.
17. Severability. Wherever possible, each provision of this Guaranty will
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Guaranty is prohibited by or invalid under
such law, such provision will be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
18. Captions. Section captions used in this Guaranty are for convenience
only, and do not affect the construction of this Guaranty.
19. Consent to Jurisdiction. To induce the Bank to accept this Guaranty,
the Guarantor irrevocably agrees that, subject to the Bank's sole and absolute
election, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF, FROM OR RELATED
TO THIS GUARANTY WILL BE LITIGATED IN COURTS HAVING SITUS WITHIN CHICAGO,
ILLINOIS. THE GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY COURT LOCATED WITHIN CHICAGO, ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS
UPON THE GUARANTOR, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL DIRECTED TO THE GUARANTOR AT THE ADDRESS STATED ON THE
SIGNATURE PAGE HEREOF AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON
ACTUAL RECEIPT.
20. Waiver of Jury Trial. THE GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS
GUARANTY, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY. THE GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY
CLAIM AGAINST THE BANK ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
SIGNED AND DELIVERED THIS 18th day of Feb
/s/ Greg Manning
Greg Manning
