EXHIBIT B FORM OF GUARANTEE

 

 

 

 December ___, 2009

 

FOR VALUE RECEIVED, and in consideration of loans made or to be made or credit otherwise extended or to be extended by MGM FUNDING, LLC (the "Lender")to or for the account of BROOKRIDGE FUNDING SERVICES, LLC, a North Carolina limited liability company (the "Borrower") located at 10801 Johnston Road, Suite 210, Charlotte, NC 28226, from time to time and at any time and for other good and valuable consideration and to induce the Lender, in its discretion, to make or commit to make such loans or extensions of credit and to make or grant such renewals, extensions, releases of coll ateral or relinquishments of legal rights as the Lender may deem advisable, the undersigned (jointly and severally, if more than one guarantor, whether executing the same instrument or separate instruments) absolutely and unconditionally guarantees to the Lender the prompt payment when due, whether by acceleration or otherwise, of all present or future obligations and liabilities of any and all kinds of the Borrower to the Lender and of all instruments of any nature evidencing or relating to any such obligations and liabilities upon which the Borrower or one or more parties and the Borrower is or may become liable to the Lender, whether incurred by the Borrower as maker, indorser, drawer, acceptor, guarantor, accommodation party, counterparty, purchaser, seller or otherwise, and whether due or to become due, secured or unsecured, absolute or contingent, joint and/or several, and howsoever or whensoever acquired by the Lender (all of which are referred to as the "Obligations"), and irrespective of the genuineness, validity, regularity, discharge, release or enforceability of such Obligations, or of any instrument evidencing any of the Obligations or of any collateral therefor or of the existence or extent of such collateral or of the obligations of the undersigned under this guarantee. The Obligations shall include interest accruing thereon before or after the commencement of any insolvency, bankruptcy or reorganization proceeding in respect of the Borrower or any other guarantor of the Obligations whether or not such interest is an allowable claim in any such proceeding and irrespective of the discharge or release of the Borrower or any other guarantor in such proceeding.

 

The undersigned assents that the Lender may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the undersigned, extend the time of payment of, exchange, release, substitute or surrender any collateral for, renew or extend any of, or change the amount of, the Obligations or increase the interest rate thereon, and may also make any agreement with the Borrower or with any other party to or person liable on any of the Obligations or any guarantor of or hypothecator of collateral or other surety for such Obligations or interested therein, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Lender and the Borrower or any such other party or person, without in any way impairing or affecting this guarantee.

 

The undersigned agrees that this guarantee shall not be impaired or otherwise affected by any failure to call for, take, hold, protect or perfect, continue the perfection of or enforce any security interest in or other lien upon, any collateral for the Obligations, or by any failure to exercise, delay in the exercising or waiver of, or forbearance with respect to, any right or remedy available to the Lender with respect to the Obligations.

 

The undersigned acknowledges that it has derived or expects to derive a financial or other benefit from each and every Obligation incurred by the Borrower to the Lender.

 

The undersigned waives notice of the acceptance of this guarantee and of the making of any such loans or extensions of credit or the incurrence of any Obligation, presentment to or demand of payment from anyone whomsoever liable upon any of the Obligations, protest, notice of presentment, non-payment or protest and notice of any sale or other disposition of collateral security or any default of any sort.

 

All liabilities of the undersigned to the Lender under this guarantee are secured pursuant to the terms any security agreement that the undersigned shall have executed or shall at any time execute in favor of the Lender, and the Lender is entitled to all of the benefits thereof.

 

The undersigned agrees to pay all costs and expenses incurred by the Lender incidental to or in any way relating to the enforcement or protection of the rights of the Lender hereunder or with respect to any of the Obligations, including, but not limited to, reasonable attorneys' fees and expenses, whether or not litigation is commenced.

 

 

 

This is a continuing guarantee and shall apply to all Obligations notwithstanding that at any particular time any or all of the Obligations shall have been paid in full. This guarantee shall remain in full force and effect and be binding upon the undersigned, and the undersigned's successors and assigns, until written notice of its revocation shall actually be received by the Lender. No such revocation shall release the undersigned or affect in any manner the rights, remedies, powers, security interests and liens of the Lender under this guarantee with respect to any of the Obligations which shall have been created, contracted, assumed or incurred prior to actual receipt by the Lender of such written notice of revocation and any renewals or extensions thereof or any Obligations which shall have been created, contracted, assumed or incu rred after actual receipt of such written notice pursuant to any agreement entered into by the Lender prior to actual receipt of such written notice and any renewals or extensions thereof. Any such revocation by one of the undersigned shall not affect the continuing liabilities hereunder of such of the undersigned as do not give notice of revocation. If any of the present or future Obligations are guaranteed by persons, partnerships, limited liability companies or corporations in addition to the undersigned, the death, release or discharge in whole or in part, or the bankruptcy, liquidation or dissolution of one or more of them, shall not discharge or affect the liabilities of the undersigned under this guarantee.

 

This guarantee shall continue to be effective, or shall be reinstated, as the case may be, if at any time payment of all or any part of any payment of any of the Obligations is rescinded or must be restored or returned by the Lender whether under any insolvency, bankruptcy, receivership or reorganization proceeding or otherwise.

 

This guarantee may be assigned by the Lender and its benefits shall inure to the successors, indorsees and assigns of the Lender.

 

This guarantee is a guarantee of payment and not of collection, and the Lender shall be under no obligation to take any action against the Borrower or any other person liable with respect to any of the Obligations or resort to any collateral security securing any of the Obligations or this guarantee as a condition precedent to the undersigned being obligated to make payment and to perform as agreed herein. The undersigned hereby waives any right to claim or interpose any defense, counterclaim or offset of any nature and description which it may have or which may exist between and among the Lender, the Borrower and/or the undersigned or to seek injunctive relief.

 

Promptly upon the Lender's request, the undersigned agrees to furnish such information (including financial statements and tax returns of the undersigned) to the Lender and to permit the Lender to inspect and make copies of its books and records, as the Lender shall reasonably request from time to time.

 

The undersigned authorizes the Lender to date this guarantee and to complete any blank space herein according to the terms upon which this guarantee was given.

 

Any notice to the Lender shall be effective only upon receipt by the Lender and if directed to MGM Funding, LLC, 2799 NW 2nd Avenue, Suite 218, Boca Raton, FL 33431, Attention: Morry Rubin, or any other address hereafter specified by written notice from the Lender to the undersigned.

 

Until such time as the Lender shall have received payment in full in cash in satisfaction of all of the Obligations, the undersigned waives any right to be subrogated to the rights of the Lender with respect to the Obligations, and the undersigned waives any right to and agrees that it will not institute or take any action against the Borrower seeking contribution, reimbursement or indemnification by the Borrower with respect to any payments made by the undersigned to the Lender hereunder.

 

Every provision of this guarantee is intended to be severable; if any term or provision of this guarantee shall be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

 

No failure on the part of the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of any right, remedy or power hereunder preclude any other or future exercise thereof or the exercise of any other right, remedy or power.

 

Each and every right, remedy and power hereby granted to the Lender or allowed it by law or other agreement shall be cumulative and not exclusive of any other right, remedy or power, and may be exercised by the Lender at any time and from time to time.

 

This guarantee contains the entire agreement and understanding between the Lender and the undersigned with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof. This guarantee may not be amended, and compliance with its terms may not be waived, orally or by course of dealing, but only by a writing signed by an authorized officer of the Lender.

 

 

 

Until cash payment in full of the Obligations, the liability of the undersigned under this guarantee shall not be released.

 

Notwithstanding the aggregate amount of the Obligations which may become due to the Lender from the Borrower at any time and from time to time, the liability of each guarantor under this guarantee shall be limited $300,000 (hereinafter referred to as the "Maximum Amount. It is understood, however, that the Obligations of the Borrower to the Lender may at any time exceed the Maximum Amount without affecting the liabilities of either guarantor under this guarantee.  Each guarantor agrees that the limitation of liability to the Maximum Amount shall not apply to any loss, liability, expense or damage incurred by the Lender arising or resulting from the commission of fraud or the making of a material misrepresentation by such guarantor (the "Exclusion") or any of his agents in connection with this guarantee and such guarantor shall have personal liability with respect to same.  Each guarantor hereby indemnifies and holds the Lender harmless from and against any loss, cost, damage, expense or liability that the Lender shall incur arising from the Exclusion and agrees that such indemnification and the liability of such guarantor resulting therefrom shall survive the repayment or discharge of the Obligations.

 

 

 

IN WITNESS WHEREOF, this guarantee has been executed by the undersigned as of the date first written above.

 

Address:

 

____________________

____________________

____________________________

John A. McNiff III

 

____________________

____________________

____________________________

Michael P. Hilton

 

State of _________  )

                                      ) ss.:

County of ________)

 

On the ____ day of November in the year 2009 before me, the undersigned, personally appeared John A. McNiff III, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

Signature and Office of individual

taking acknowledgment

 

State of _________  )

                                      ) ss.:

County of ________)

 

On the ____ day of November in the year 2009 before me, the undersigned, personally appeared Michael P. Hilton, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

Signature and Office of individual

taking acknowledgment