Exhibit
10.6


 


GUARANTY OF PAYMENT AGREEMENT


 


THIS GUARANTY OF PAYMENT AGREEMENT (this “Agreement”)
is made this 30th day of April, 2010, by SURPLUS ACQUISITION VENTURE, LLC, a
limited liability company organized under the laws of the State of Delaware
(the “Guarantor”), for the benefit of BANK OF AMERICA, N.A., a national banking
association, its successors and assigns (the “Lender”).


 


RECITALS


 


A.            LIQUIDITY SERVICES, INC., a corporation
organized under the laws of the State of Delaware (the “Borrower”) has applied
to the Lender for a revolving credit facility in the maximum principal amount
of Thirty Million Dollars ($30,000,000) and, as part of that revolving credit facility, a letter of credit facility in
the maximum principal amount of Ten Million Dollars ($10,000,000) (collectively, the “Credit Facilities”),
which is to be advanced pursuant to the terms of a Financing and Security
Agreement of even date herewith by and between the Borrower and the Lender (as
amended, modified, restated, substituted, extended and renewed at any time and
from time to time, the “Financing Agreement”).


 


B.            All defined terms used in this Agreement
and not defined herein shall have the meaning given to such terms in the
Financing Agreement.


 


C.            The Guarantor has requested that the
Lender enter into the Financing Agreement with the Borrower and make the Credit
Facilities available to the Borrower.


 


D.            The Lender has required, as a condition
to entering into the Financing Agreement, that the Guarantor execute, among
other things, that certain Security Agreement of even date herewith by
Guarantor in favor of Lender, as amended from time to time, that certain
Pledge, Assignment and Security Agreement of even date herewith by Guarantor in
favor of Lender, as amended from time to time, and this Agreement as additional
security for the payment and performance of the Obligations.


 


NOW, THEREFORE, in order to induce the Lender to enter
into the Financing Agreement, the Guarantor covenants and agrees with the
Lender as follows:


 


ARTICLE I 

THE GUARANTY


 


Section 1.1             Guaranty.


 


In order to induce the Lender to make the Credit
Facilities available to Borrower, the Guarantor hereby unconditionally and
irrevocably guarantees to the Lender:


 


(a)           the due and punctual payment in full (and not merely
the collectibility) of the principal of the Obligations and the interest
thereon, in each case when due and payable, all according to the terms of any
promissory note evidencing all or any part of the Obligations, 


 

















 


including without limitation, the Revolving Credit
Note, and the other Financing Documents (as that term is defined in the
Financing Agreement);


 


(b)           the due and punctual payment in full (and not merely
the collectibility) of all other sums and charges which may at any time be due
and payable in accordance with, or secured by, any promissory note evidencing
all or any part of the Obligations or any of the other Financing Documents;


 


(c)           the due and punctual performance of all of the other
terms, covenants and conditions contained in the Financing Documents; and


 


(d)           all indebtedness, obligations and liabilities of any
kind and nature of the Borrower to the Lender, whether now existing or
hereafter created or arising, direct or indirect, matured or unmatured, and
whether absolute or contingent, joint, several or joint and several, and
howsoever owned, held or acquired.


 


Section 1.2             Guaranty Unconditional.


 


The obligations and liabilities of the Guarantor under
this Agreement shall be absolute and unconditional, irrespective of the
genuineness, validity, priority, regularity or enforceability of the Financing
Agreement, any promissory note evidencing all or any part of the Obligations,
or any of the other Financing Documents or any other circumstance which might
otherwise constitute a legal or equitable discharge of a surety or
guarantor.  The Guarantor expressly
agrees that the Lender may, in its sole and absolute discretion, without notice
to or further assent of the Guarantor and without in any way releasing,
affecting or in any way impairing the obligations and liabilities of the
Guarantor hereunder:


 


(a)           waive compliance with, or any defaults
under, or grant any other indulgences under or with respect to any of the
Financing Documents;


 


(b)           modify, amend, change or terminate any
provisions of any of the Financing Documents;


 


(c)           grant extensions or renewals of or with
respect to any promissory note evidencing all or any part of the Obligations,
any of the other Financing Documents or any of the Obligations;


 


(d)           effect any release, subordination,
compromise or settlement in connection with any promissory note evidencing all
or any part of the Obligations, any of the other Financing Documents, or any of
the Obligations;


 


(e)           agree to the substitution, exchange,
release or other disposition of the Collateral or any part thereof, or any
other collateral for the Obligations or to the subordination of any lien or
security interest therein;


 


(f)            make advances for the purpose of
performing any term, provision or covenant contained in the Financing Agreement
or any of the other Financing Documents with respect to which the Borrower
shall then be in default;


 


2

















 


(g)           make future advances to the Borrower
pursuant to the Financing Agreement or any of the other Financing Documents;


 


(h)           assign, pledge, hypothecate or otherwise
transfer the Financing Agreement, any of the Financing Documents or this
Agreement or any interest therein;


 


(i)            deal in all respects with the Borrower as
if this Agreement were not in effect; and


 


(j)            effect any release, compromise or
settlement with another guarantor.


 


Section 1.3             Guaranty Primary.


 


The obligations and liabilities of the Guarantor under
this Agreement shall be primary, direct and immediate, shall not be subject to
any counterclaim, recoupment, setoff, reduction or defense based upon any claim
that the Guarantor may have against the Borrower, the Lender and/or any other
guarantor and shall not be conditional or contingent upon pursuit or
enforcement by the Lender of any remedies it may have against the Borrower with
respect to any promissory note evidencing all or any part of the Obligations or
any of the other Financing Documents, whether pursuant to the terms thereof or
by operation of law.  Without limiting
the generality of the foregoing, the Lender shall not be required to make any
demand upon the Borrower, or to sell the Collateral or otherwise pursue,
enforce or exhaust its remedies against the Borrower or the Collateral either
before, concurrently with or after pursuing or enforcing its rights and
remedies hereunder.  Any one or more
successive or concurrent actions or proceedings may be brought against the
Guarantor under this Agreement, either in the same action, if any, brought
against the Borrower or in separate actions or proceedings, as often as the
Lender may deem expedient or advisable. 
Without limiting the foregoing, it is specifically understood that any
modification, limitation or discharge of any of the liabilities or obligations
of the Borrower, any other guarantor or any obligor under any of the Financing
Documents, arising out of, or by virtue of, any bankruptcy, arrangement,
reorganization or similar proceeding for relief of debtors under federal or
state law initiated by or against the Borrower or the Guarantor or any obligor
under any of the Financing Documents shall not modify, limit, lessen, reduce,
impair, discharge, or otherwise affect the liability of the Guarantor hereunder
in any manner whatsoever, and this Agreement shall remain and continue in full
force and effect.  It is the intent and
purpose of this Agreement that the Guarantor shall and does hereby waive all
rights and benefits which might accrue to any other guarantor by reason of any
such proceeding, and the Guarantor agrees that it shall be liable for the full
amount of the obligations and liabilities under this Agreement, regardless of,
and irrespective to, any modification, limitation or discharge of the liability
of the Borrower, any other guarantor or any obligor under any of the Financing
Documents, that may result from any such proceedings.


 


Section 1.4             Certain Waivers by the Guarantor.


 


The Guarantor hereby unconditionally, irrevocably and
expressly waives:


 


3

















 


(a)           presentment and demand for payment of the
principal of or interest on any promissory note evidencing all or any part of
the Obligations and protest of non-payment;


 


(b)           notice of acceptance of this Agreement
and of presentment, demand and protest thereof;


 


(c)           notice of any default hereunder or under
the Financing Agreement, or any of the other Financing Documents and notice of
all indulgences;


 


(d)           notice of any increase in the amount of
any portion of or all of the indebtedness guaranteed by this Agreement;


 


(e)           demand for observance, performance or
enforcement of any of the terms or provisions of this Agreement, the Financing
Agreement or any of the other Financing Documents;


 


(f)            all errors and omissions in connection
with the Lender’s administration of all indebtedness guaranteed by this
Agreement, except errors and omissions resulting from acts of bad faith;


 


(g)           any right or claim of right to cause a
marshalling of the assets of the Borrower;


 


(h)           any act or omission of the Lender (except
acts or omissions in bad faith) which changes the scope of the Guarantor’s risk
hereunder; and


 


(i)            all other notices and demands otherwise
required by law which the Guarantor may lawfully waive.


 


Section 1.5             Reimbursement for Expenses.


 


In the event the Lender shall commence any action or
proceeding for the enforcement of this Agreement, then the Guarantor will
reimburse the Lender, promptly upon demand, for any and all expenses incurred
by the Lender in connection with such action or proceeding including, without
limitation, reasonable attorneys’ fees together with interest thereon at the
Post-Default Rate.


 


Section 1.6             Events of Default.


 


The occurrence of any one or more of the following
events shall constitute an “Event of Default” under the provisions of this
Agreement (individually, an “Event of Default” and collectively, the “Events of
Default”):


 


(a)           The failure of the Guarantor to pay any
of the Obligations as and when due and payable in accordance with the
provisions of this Agreement.


 


4

















 


(b)           Any representation or warranty made in
this Agreement or in any report, statement, schedule, certificate, opinion
(including any opinion of counsel for the Guarantor), financial statement or
other document furnished in connection with this Agreement, shall prove to have
been false or misleading when made (or, if applicable, when reaffirmed) in any
material respect.


 


(c)           The failure of the Guarantor to perform,
observe or comply with any covenant, condition or agreement contained in this
Agreement.


 


(d)           A Default shall occur under any of the
other Financing Documents and such Default is not cured within any applicable
grace period provided therein.


 


(e)           The Guarantor shall (i) apply for or
consent to the appointment of a receiver, trustee or liquidator of itself or
any of its property, (ii) admit in writing its inability to pay its debts
as they mature, (iii) make a general assignment for the benefit of
creditors, (iv) be adjudicated a bankrupt or insolvent, (v) file a
voluntary petition in bankruptcy or a petition or an answer seeking or
consenting to reorganization or an arrangement with creditors or to take
advantage of any bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any such
law, or take action for the purposes of effecting any of the foregoing, or (vi) by
any act indicate its consent to, approval of or acquiescence in any such
proceeding or the appointment of any receiver of or trustee for any of its
property, or suffer any such receivership, trusteeship or proceeding to
continue undischarged for a period of sixty (60) days, or (vii) by any act
indicate its consent to, approval of or acquiescence in any order, judgment or
decree by any court of competent jurisdiction or any Governmental Authority
enjoining or otherwise prohibiting the operation of a material portion of the
Guarantor’s business or the use or disposition of a material portion of the
Guarantor’s assets.


 


(f)            (i) An order for relief shall be
entered in any involuntary case brought against the Guarantor under the
Bankruptcy Code, or (ii) any such case shall be commenced against the
Guarantor and shall not be dismissed within sixty (60) days after the filing of
the petition, or (iii) an order, judgment or decree under any other Law is
entered by any court of competent jurisdiction or by any other Governmental
Authority on the application of a Governmental Authority or of a Person other
than the Guarantor (A) adjudicating the Guarantor bankrupt or insolvent,
or (B) appointing a receiver, trustee or liquidator of the Guarantor, or
of a material portion of the Guarantor’s assets, or (C) enjoining,
prohibiting or otherwise limiting the operation of a material portion of the
Guarantor’s business or the use or disposition of a material portion of the
Guarantor’s assets, and such order, judgment or decree continues unstayed and
in effect for a period of thirty (30) days from the date entered.


 


5

















 


(g)           Unless adequately insured, the entry of a
final judgment for the payment of money involving more than $2,000,000 against
the Guarantor, and the failure by the Guarantor to discharge the same, or cause
it to be discharged, within thirty (30) days from the date of the order, decree
or process under which or pursuant to which such judgment was entered, or to
secure a stay of execution pending appeal of such judgment.


 


(h)           If the Guarantor shall liquidate,
dissolve or terminate its existence or any Change in Control of the Guarantor
occurs without the prior written consent of the Lender.


 


(i)            Any execution or attachment shall be
levied against any collateral for this Agreement having an aggregate value in
excess of Five Hundred Thousand Dollars ($500,000), or any part thereof, and
such execution or attachment shall not be set aside, discharged or stayed
within thirty (30) days after the same shall have been levied.


 


Section 1.7             Rescission of Election to Accelerate.


 


In the event the Lender shall elect to accelerate the
maturity of any promissory note evidencing all or any part of the Obligations
as to the Guarantor pursuant to the provisions of this Agreement, such election
may be rescinded by written acknowledgment to that effect by the Lender;
provided, however, that the acceptance of a partial payment on account of any
promissory note evidencing all or any part of the Obligations shall not alone
effect or rescind such election.


 


Section 1.8             Subordination; Subrogation.


 


In the event the Guarantor shall advance any sums to
the Borrower, or in the event the Borrower has heretofore or shall hereafter
become indebted to the Guarantor before the Obligations have been paid in full,
all such advances and indebtedness shall be subordinate in all respects to the
Obligations (the “Guarantor Subordinated Debt”).  Any payment to the Guarantor on account of
the Guarantor Subordinated Debt shall be collected and received by the Lender
or the Guarantor in trust for the Lender and shall be paid over to the Lender
on account of the Obligations without impairing or releasing the obligations of
the Guarantor hereunder.


 


Without the prior written consent of the Lender, the
Guarantor shall not ask, demand, receive, accept, sue for, set off, collect or
enforce the Guarantor Subordinated Debt or any collateral and security
therefor.  The Guarantor represents and
warrants to the Lender that the Guarantor Subordinated Debt is unsecured and agrees
not to receive or accept any collateral or security therefor without the prior
written permission of the Lender.  The
Guarantor shall not assign, transfer, hypothecate or dispose of the Guarantor
Subordinated Debt while this Agreement is in effect.  In the event of any sale, receivership, insolvency
or bankruptcy proceeding, or assignment for the benefit of creditors, or any
proceeding by or against the Borrower for any relief under any bankruptcy or
insolvency law or other laws relating to the relief of debtors, readjustment of
indebtedness, reorganizations, compositions or extensions, then and in any such
event any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon, or
with respect to, all or 


 


6

















 


any part of the Guarantor
Subordinated Debt or otherwise shall be paid or delivered directly to the
Lender for application to the obligations and liabilities of the Guarantor
under this Agreement (whether due or not due and in such order and manner as
the Lender may determine in the exercise of its sole discretion) until the
obligations of the Guarantor hereunder shall have been fully paid and
satisfied.  The Guarantor hereby
irrevocably authorizes and empowers the Lender to demand, sue for, collect and
receive every such payment or distribution on account of the Guarantor
Subordinated Debt and give acquittance therefor and to file claims and take
such other proceedings in the Lender’s own name or in the name of the Guarantor
or otherwise, as the Lender may deem necessary or advisable to carry out the
provisions of this Agreement.  The
Guarantor hereby agrees to execute and deliver to the Lender such powers of
attorney, assignments, endorsements or other instruments as may be requested by
the Lender in order to enable the Lender to enforce any and all claims upon, or
with respect to, the Guarantor Subordinated Debt, and to collect and receive
any and all payments or distributions which may be payable or deliverable at
any time upon or with respect thereto.


 


So as to secure the performance by the Guarantor of
the provisions of this Agreement, the Guarantor assigns, pledges and grants to
the Lender a security interest in, and lien on, the Guarantor Subordinated
Debt, all proceeds thereof and all and any security and collateral
therefor.  Upon the request of the
Lender, the Guarantor shall endorse, assign and deliver to the Lender all
notes, instruments and agreements evidencing, securing, guarantying or made in
connection with the Guarantor Subordinated Debt.


 


Nothing contained in this Agreement shall be construed
to give the Guarantor any right of subrogation in or to the Obligations or any
of the Financing Documents, or all or any part of the interest of the Lender
therein, until the Obligations have been paid in full.


 


ARTICLE II 

REPRESENTATIONS AND WARRANTIES


 


Section 2.1             Representations and Warranties.


 


The Guarantor represents and warrants to the Lender as
follows:


 


2.1.1        Good Standing.


 


The Guarantor (a) is duly organized, existing and
in good standing under the laws of the State of Delaware, (b) has the
power to own its property and to carry on its business as now being conducted,
and (c) is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned by it therein or in
which the transaction of its business makes such qualification necessary,
except in each case referred to in clause (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


2.1.2        Power and Authority.


 


The Guarantor has full power and authority to execute
and deliver this Agreement and the other Financing Documents to which it is a
party and to incur and perform the Obligations whether under this Agreement,
the other Financing Documents or otherwise, all 


 


7

















 


of which have been duly
authorized by all proper and necessary action under the governing documents of
the Guarantor.  No consent or approval of
owners or any creditors of the Guarantor, and no consent, approval, filing or
registration with or notice to any Governmental Authority on the part of the
Guarantor, is required as a condition to the execution, delivery, validity or
enforceability of this Agreement or the other Financing Documents or the
performance by the Guarantor of the Obligations other than filings for the
perfection of Liens.


 


2.1.3        Binding Agreements.


 


This Agreement and the other Financing Documents
executed and delivered by the Guarantor have been properly executed and
delivered and constitute the valid and legally binding obligations of the
Guarantor and are fully enforceable against the Guarantor in accordance with
their respective terms.


 


2.1.4        No Conflicts.


 


Neither the execution, delivery and performance of the
terms of this Agreement or of any of the other Financing Documents executed and
delivered by the Guarantor nor the consummation of the transactions
contemplated by this Agreement will conflict with, violate or be prevented by (a) the
Guarantor’s organizational documents, (b) any existing mortgage,
indenture, contract or agreement binding on the Guarantor or affecting its
property, or (c) any Laws, except in each case referred to in clause (b) or
(c), as would not reasonably be expected to have a Material Adverse Effect.


 


2.1.5        Compliance with Laws.


 


The Guarantor is not in violation of any applicable
Laws (including, without limitation, any Laws relating to employment practices,
to environmental, occupational and health standards and controls) or order,
writ, injunction, decree or demand of any court, arbitrator or any Governmental
Authority affecting the Guarantor or any of its properties, the violation of
which, considered in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


2.1.6        Litigation.


 


There are no proceedings, actions or investigations
pending or, so far as the Guarantor knows, threatened before or by any court,
arbitrator or any Governmental Authority which, in any one case or in the
aggregate, if determined adversely to the interests of the Guarantor, would
reasonably be expected to have a Material Adverse Effect.


 


2.1.7        Full Disclosure.


 


The financial statements referred to in the Financing
Documents (including, without limitation, this Agreement), and the statements,
reports or certificates furnished by the Guarantor in connection with the
Financing Documents when taken in their entirety (a) do not contain any
untrue statement of a material fact and (b) do not omit any material fact
necessary to make the statements contained therein not misleading.  There is no fact known to the Guarantor and
existing on the Closing Date which Borrower or Guarantor has not disclosed to
the Lender in writing prior to the date of this Agreement and there is no fact
known 


 


8

















 


to Guarantor arising
after the Closing Date, and existing at the time of the remaking by Borrower of
the representations under the Financing Agreement, which Borrower or Guarantor
has not disclosed to Lender in writing or publicly filed with the Securities
Exchange Commission, with respect to the transactions contemplated by the
Financing Documents, prior to the remaking by Borrower of the representations
under the Financing Agreement, that in the reasonable opinion of the Guarantor
could materially adversely affect the condition, financial or other wise,
results of operations, business, or assets of the Guarantor.


 


2.1.8        Financial Interest.


 


The Guarantor will derive a benefit from the Credit
Facilities extended to and the Obligations incurred by the Borrower.


 


Section 2.2             Survival; Updates of Representations and Warranties.


 


All representations and warranties contained in or
made under or in connection with this Agreement and the other Financing
Documents shall survive the Closing Date, the making of any advance under the
Financing Agreement and the incurring of any Obligations.


 


ARTICLE III 

AFFIRMATIVE COVENANTS


 


The Guarantor hereby covenants and agrees as follows:


 


Section 3.1             Further Assurances.


 


The Guarantor will make, execute, acknowledge and
deliver all and every such further acts and assurances as the Lender shall from
time to time require for confirming or carrying out the intentions or
facilitating the performance of the terms of this Agreement.


 


Section 3.2             Financial Records.


 


The Guarantor will maintain or cause to be maintained
full, complete, accurate and adequate records and books of account in
accordance with generally accepted accounting principles consistently applied.


 


Section 3.3             Estoppel Certificates.


 


Within ten (10) days following any request of the
Lender so to do, the Guarantor will furnish the Lender and such other persons
as the Lender may direct with a written certificate, duly acknowledged stating
in detail whether or not any credits, offsets or defenses exist with respect to
this Agreement.


 


9

















 


ARTICLE IV 

MISCELLANEOUS


 


Section 4.1             Notices.


 


All notices, requests and demands to or upon the
parties to this Agreement shall be in writing and shall be deemed to have been
given or made when delivered by hand on a Business Day, or two (2) days
after the date when deposited in the mail, postage prepaid by registered or
certified mail, return receipt requested, or when sent by overnight courier, on
the Business Day next following the day on which the notice is delivered to
such overnight courier, addressed as follows:


 


	
   

  	
  Guarantor:

  	
  Surplus Acquisition
  Venture, LLC

  
	
   

  	
   

  	
  1920 L Street NW, 6th Floor

  
	
   

  	
   

  	
  Washington, D.C. 20036

  
	
   

  	
   

  	
  Attention: James M.
  Rallo, CFO and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
  Gibson, Dunn &
  Crutcher LLP

  
	
   

  	
   

  	
  200 Park Avenue

  
	
   

  	
   

  	
  New York, New York
  10166

  
	
   

  	
   

  	
  Attention: Aaron F.
  Adams, Esq.

  
	
   

  	
   

  	
   

  
	
   

  	
  Lender:

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
  1101 Wootton Parkway,
  4th Floor

  
	
   

  	
   

  	
  Rockville, Maryland
  20852

  
	
   

  	
   

  	
  Attention: Michael J. Radcliffe, SVP

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
  Troutman Sanders LLP

  
	
   

  	
   

  	
  1660 International
  Drive, Suite 600

  
	
   

  	
   

  	
  McLean, Virginia 22102

  
	
   

  	
   

  	
  Attention: Richard M.
  Pollak, Esq.

  



 


By written notice, each party to this Agreement may
change the address to which notice is given to that party, provided that such
changed notice shall include a street address to which notices may be delivered
by overnight courier in the ordinary course on any Business Day.


 


Section 4.2             Amendments; Waivers.


 


This Agreement may not be amended, modified, or
changed in any respect except by an agreement in writing signed by the Lender
and the Guarantor.  No waiver of any
provision of this Agreement, nor consent to any departure by the Guarantor therefrom,
shall in any event be effective unless the same shall be in writing.  No course of dealing between the Guarantor
and the Lender and no act or failure to act from time to time on the part of
the Lender shall constitute a waiver, amendment or modification of any
provision of this Agreement or any right or remedy under this Agreement or
under applicable Laws.


 


Without implying any limitation on the foregoing:


 


10

















 


(a)           Any waiver or consent shall be effective
only in the specific instance, for the terms and purpose for which given,
subject to such conditions as the Lender may specify in any such instrument.


 


(b)           No waiver of any Default or Event of
Default shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereto.


 


(c)           No notice to or demand on the Guarantor
in any case shall entitle the Guarantor to any other or further notice or
demand in the same, similar or other circumstance.


 


(d)           No failure or delay by the Lender to
insist upon the strict performance of any term, condition, covenant or
agreement of this Agreement or of any of the other Financing Documents, or to
exercise any right, power or remedy consequent upon a breach thereof, shall
constitute a waiver, amendment or modification of any such term, condition,
covenant or agreement or of any such breach or preclude the Lender from
exercising any such right, power or remedy at any time or times.


 


(e)           By accepting payment after the due date
of any amount payable under this Agreement or under any of the other Financing
Documents, the Lender shall not be deemed to waive the right either to require
prompt payment when due of all other amounts payable under this Agreement or
under any of the other Financing Documents, or to declare a default for failure
to effect such prompt payment of any such other amount.


 


Section 4.3             Cumulative Remedies.


 


The rights, powers and remedies provided in this
Agreement and in the other Financing Documents are cumulative, may be exercised
concurrently or separately, may be exercised from time to time and in such
order as the Lender shall determine and are in addition to, and not exclusive
of, rights, powers and remedies provided by existing or future applicable Laws.  In order to entitle the Lender to exercise
any remedy reserved to it in this Agreement, it shall not be necessary to give
any notice, other than such notice as may be expressly required in this
Agreement.  Without limiting the generality
of the foregoing, the Lender may:


 


(a)           proceed against the Guarantor with or
without proceeding against the Borrower or any other Person who may be liable
for all or any part of the Obligations;


 


(b)           proceed against the Guarantor with or
without proceeding under any of the other Financing Documents or against any
Collateral or other collateral and security for all or any part of the
Obligations;


 


11
















 


(c)           without
reducing or impairing the obligation of the Guarantor and without notice,
release or compromise with any other Person liable for all or any part of the
Obligations under the Financing Documents or otherwise; or


 


(d)           without
reducing or impairing the obligations of the Guarantor and without notice
thereof:  (i) fail to perfect the
Lien in any or all Collateral or to release any or all the Collateral or to
accept substitute Collateral, (ii) approve the making of advances under
the credit facilities under the Financing Agreement, (iii) waive any
provision of this Agreement or the other Financing Documents, (iv) exercise
or fail to exercise rights of set-off or other rights, or (v) accept
partial payments or extend from time to time the maturity of all or any part of
the Obligations.


 


Section 4.4                                      Severability.


 


In case one or more provisions, or part thereof,
contained in this Agreement or in the other Financing Documents shall be
invalid, illegal or unenforceable in any respect under any Law, then without
need for any further agreement, notice or action:


 


(a)           the
validity, legality and enforceability of the remaining provisions shall remain
effective and binding on the parties thereto and shall not be affected or
impaired thereby;


 


(b)           the
obligation to be fulfilled shall be reduced to the limit of such validity;


 


(c)           if
such provision or part thereof pertains to repayment of the Obligations, then,
at the sole and absolute discretion of the Lender, all of the Obligations shall
become immediately due and payable; and


 


(d)           if
the affected provision or part thereof does not pertain to repayment of the
Obligations, but operates or would prospectively operate to invalidate this
Agreement in whole or in part, then such provision or part thereof only shall
be void, and the remainder of this Agreement shall remain operative and in full
force and effect.


 


Section 4.5                                      Assignments by Lender.


 


The Lender may, with the consent of the Borrower and
the Guarantor, sell, assign or transfer to or participate with any Person or
Persons all or any part of the Obligations, and each such Person or Persons
shall have the right to enforce the provisions of this Agreement and any of the
other Financing Documents as fully as the Lender, provided that the Lender
shall continue to have the unimpaired right to enforce the provisions of this
Agreement and any of the other Financing Documents as to so much of the
Obligations that the Lender has not sold, assigned or transferred.  In connection with the foregoing, the Lender
shall have the right to disclose to any such actual or potential purchaser,
assignee, transferee or participant all financial records, information,
reports, financial statements and documents obtained in connection with this
Agreement and any of the other Financing Documents or otherwise; provided that
each such 


 


12

















 


recipient shall have
executed and delivered to the Guarantor a confidentiality agreement containing
substantially the same terms as Section 8.21 of the Financing Agreement.


 


Section 4.6                                      Successors and Assigns.


 


This Agreement shall be binding upon the Guarantor and
its successors and assigns, and shall inure to the benefit of the Lender and
its successors and assigns.


 


Section 4.7                                      Continuing Agreements.


 


All covenants, agreements, representations and
warranties made by the Guarantor in this Agreement and in any certificate
delivered pursuant hereto shall survive the making by the Lender of advances
and other extensions of credit under the Credit Facilities and the execution
and delivery of each promissory note evidencing all or any part of the
Obligations, shall be binding upon the Guarantor regardless of how long before
or after the date hereof any of the Obligations were or are incurred, and shall
continue in full force and effect so long as any of the Obligations are
outstanding and unpaid.  From time to
time upon the Lender’s request, and as a condition of the release of any one or
more of the Security Documents, the Guarantor and other Persons obligated with
respect to the Obligations shall provide the Lender with such acknowledgments
and agreements as the Lender may require to the effect that there exists no
defenses, rights of setoff or recoupment, claims, counterclaims, actions or
causes of action of any kind or nature whatsoever against the Lender, its
agents and others, or to the extent there are, the same are waived and
released.


 


Section 4.8                                      Enforcement Costs.


 


The Guarantor agrees to pay to the Lender on demand
all Enforcement Costs, together with interest thereon from the date incurred or
advanced until paid in full at a per annum rate of interest equal at all times
to the Post-Default Rate.  Enforcement
Costs shall be immediately due and payable at the time advanced or incurred,
whichever is earlier.  Without implying
any limitation on the foregoing, the Guarantor agrees, as part of the
Enforcement Costs, to pay upon demand any and all stamp and other Taxes and
fees payable or determined to be payable in connection with the execution and
delivery of this Agreement and to save the Lender harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay any Taxes or fees referred to in this Section.  The provisions of this Section shall
survive the execution and delivery of this Agreement, the repayment of the
other Obligations and shall survive the termination of this Agreement.


 


Section 4.9                                      Applicable Law.


 


As a material inducement to the Lender to enter into
this Agreement, the Guarantor acknowledges and agrees that the Financing
Documents, including, this Agreement, shall be governed by the Laws of the
State, as if each of the Financing Documents and this Agreement had each been
executed, delivered, administered and performed solely within the State even
though for the convenience and at the request of the Borrower, one or more of
the Financing Documents may be executed elsewhere.  The Lender acknowledges, however, that
remedies under certain of the Financing Documents that relate to property
outside the State may be subject to the laws of the state in which the property
is located.


 


13

















 


Section 4.10                                Duplicate Originals and Counterparts.


 


This Agreement may be executed in any number of
duplicate originals or counterparts, each of such duplicate originals or
counterparts shall be deemed to be an original and all taken together shall
constitute but one and the same instrument.


 


Section 4.11                                Financing Documents.


 


This Agreement is one of the Financing Documents
defined in the Financing Agreement.


 


Section 4.12                                Headings; Etc.


 


The headings in this Agreement are included herein for
convenience only, shall not constitute a part of this Agreement for any other
purpose, and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.  The above
Recitals are part of this Agreement.


 


Section 4.13                                No Partnership; Third Parties.


 


Nothing contained in this Agreement shall be construed
in a manner to create any relationship between the Guarantor and the Lender
other than the relationship of guarantor and lender and the Guarantor and the
Lender shall not be considered partners or co-venturers for any purpose.  The terms and provisions of this Agreement
are for the benefit of the Lender and its successors, assigns, endorsees and
transferees and all persons claiming under or through it and no other person
shall have any right or cause of action on account thereof.  The Lender has no obligation to make any
advance of any loan provided for in the Financing Agreement or otherwise for
the benefit of the Guarantor; the Guarantor has no beneficial interest in the
proceeds of any of the loans or otherwise under the Obligations or rights or
claims under the Financing Agreement or any of the other Financing
Documents.  The obligations and
liabilities of the Guarantor shall in no manner be affected by the actual use
of the proceeds of the Credit Facilities or otherwise or whether the Lender
waives any or all of the conditions to advances set forth in the Financing
Agreement or any of the other Financing Documents.


 


Section 4.14                                Consent to Jurisdiction.


 


The Guarantor irrevocably submits to the nonexclusive
jurisdiction of the courts of the State of New York sitting in New York County
and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof over any suit, action, or proceeding
arising out of or relating to this Agreement. 
The Guarantor irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to laying the venue of any such
suit, action, or proceeding brought in any such court and any claim that any
such suit, action, or proceeding brought in any such court has been brought in
an inconvenient forum.  Final judgment in
any such suit, action, or proceeding brought in any such court shall be
conclusive and binding upon the Guarantor and may be enforced in any court to
the jurisdiction of which the Guarantor is subject, by a suit upon such
judgment provided that service of process is effected upon the Guarantor in a
manner specified in this Agreement or as otherwise permitted by applicable law.


 


14

















 


Section 4.15                                Service of Process.


 


The Guarantor hereby consents to process being served
in any suit, action, or proceeding instituted in connection with this Agreement
by the mailing of a copy thereof by certified mail, postage prepaid, return
receipt requested, to the Guarantor at the Guarantor’s address designated in Section 4.1
(Notices).  The Guarantor irrevocably
agrees that such service (y) shall be deemed in every respect to be
effective service of process upon it in any such suit, action, or proceeding
and (z) shall, to the fullest extent permitted by law, be taken and held
to be valid personal service upon the Guarantor.  Nothing in this Section shall affect the
right of the Lender to serve process in any manner otherwise permitted by law
or limit the right of the Lender otherwise to bring proceedings against the
Guarantor in the courts of any other appropriate jurisdiction or jurisdictions.


 


Section 4.16                                WAIVER OF TRIAL BY JURY.


 


THE GUARANTOR AND THE LENDER HEREBY JOINTLY AND
SEVERALLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE GUARANTOR
AND THE LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS
AGREEMENT, (B) ANY OF THE FINANCING DOCUMENTS, OR (C) THE
COLLATERAL.  THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS
AGREEMENT.


 


THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY
MADE BY THE GUARANTOR AND THE LENDER, AND THE GUARANTOR AND THE LENDER HEREBY
REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT.  THE GUARANTOR AND
THE LENDER FURTHER REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF
THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.


 


Section 4.17                                Liability of the Lender.


 


The Guarantor hereby agrees that the Lender shall not
be chargeable for any negligence, mistake, act or omission of any accountant,
examiner, agency or attorney employed by the Lender in making examinations,
investigations or collections, or otherwise in perfecting, maintaining,
protecting or realizing upon any lien or security interest or any other
interest in the Collateral or other security for the Obligations.


 


By inspecting the Collateral or any other properties
of the Borrower or by accepting or approving anything required to be observed,
performed or fulfilled by the Borrower or to be given to the Lender pursuant to
this Agreement or any of the other Financing Documents, the Lender shall not be
deemed to have warranted or represented the condition, sufficiency, legality, 


 


15

















 


effectiveness or legal
effect of the same, and such acceptance or approval shall not constitute any
warranty or representation with respect thereto by the Lender.


 


Section 4.18                                Reinstatement.


 


If at any time any payment, or portion thereof, made
by, or for the account of, the Borrower or the Guarantor on account of any of
the obligations and liabilities arising hereunder or under any of the Financing
Documents is set aside by any court or trustee having jurisdiction as a voidable
preference or fraudulent conveyance or must otherwise be restored or returned
by the Lender to the Borrower or to the Guarantor under any insolvency,
bankruptcy or other federal and/or state laws or as a result of any
dissolution, liquidation or reorganization of the Borrower or upon, or as a
result of, the appointment of any receiver, intervenor or conservator of, or
trustee, or similar officer for, the Borrower or any substantial part of its
properties or assets, the Guarantor hereby agrees that this Agreement shall
continue and remain in full force and effect or be reinstated, as the case may
be, all as though such payment(s) had not been made.


 


Section 4.19                                Complete and Final Expression of
Agreement.


 


This Agreement and the other Financing Documents are intended
by the Lender and the Guarantor to be a complete, exclusive and final
expression of the agreements contained herein. 
Neither the Lender nor the Guarantor shall hereafter have any rights
under any prior agreements pertaining to the matters addressed by this
Agreement but shall look solely to this Agreement for definition and
determination of all of their respective rights, liabilities and
responsibilities under this Agreement. 
No course of dealing, course of performance or trade usage, and no parol
evidence of any nature, shall be used to supplement or modify any terms of this
Agreement.  The Lender and the Guarantor
further agree that there are no conditions to the full effectiveness of this
Agreement, unless otherwise expressly stated herein.  The Guarantor has unconditionally delivered
this Agreement to the Lender, and failure to sign this or any other guarantee
by any other person shall not discharge the liability of the Guarantor
hereunder.


 


[SIGNATURES APPEAR ON THE
FOLLOWING PAGE]


 


16

















 


IN WITNESS WHEREOF, this Agreement is executed and
delivered as of the date first set forth above.


 


	
   

  	
  SURPLUS ACQUISITION
  VENTURE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ James M. Rallo

  
	
   

  	
  Name: James M. Rallo

  
	
   

  	
  Title: Treasurer

  



 


[Signature Page to
Guaranty of Payment Agreement]