Preview
FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024
Exhibit A
FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024
LIMITED GUARANTY
THIS LIMITED GUARANTY (this “Guaranty”) is made this 21st day of October, 2022 by GEORGE
SCOPETTA, an individual (“Guarantor”), in favor of WHITE OAK GLOBAL ADVISORS, LLC, as
administrative agent (“Administrative Agent”) for the Lenders (as defined below).
BACKGROUND
A. Lenders have previously agreed to extend certain credit facilities to PRIME PLASTIC
SURGERY MANAGEMENT LLC, a Delaware limited liability company (“PPS MGMT”; together with any
other Person that at any time after the date hereof becomes a Borrower, each a “Borrower” and collectively, the
“Borrowers”).
B. Lenders have now agreed to extend additional credit facilities to Borrowers as more fully set forth
in the First Amendment (as defined below) in consideration of, inter alia, the covenants and obligations made and
assumed by Guarantor as herein set forth and the granting of the Negative Pledge (as defined below) on the date
hereof.
C. Guarantor will benefit directly and indirectly from the extension of such additional credit facilities
to Borrowers.
NOW, THEREFORE, for good and valuable consideration, and intending to be legally bound hereby,
Guarantor irrevocably and unconditionally agrees as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall have the respective meanings
set forth in the Loan Agreement. For purposes of this Guaranty:
(a) “Enforcement Costs” means all attorneys’ fees, costs and expenses incurred by
Administrative Agent or any Lender in connection, with any of the following after the occurrence and during the
continuance of an Event of Default: (i) an attorney is retained to represent Administrative Agent or Lenders in any
bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under
this Guaranty; or (ii) an attorney is retained to provide advice or other representation in any proceedings whatsoever
in connection with this Guaranty, including without limitation, for collection through any legal proceeding,
regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to
enforce this Guaranty as well as the other Loan Documents.
(b) “Event of Default” shall include each of the following:
(i) An Event of Default as defined under the Loan Agreement or any of the other
Loan Documents;
(ii) The failure of Guarantor to perform any of Guarantor’s obligations under this
Guaranty; and
(iii) Guarantor notifies Administrative Agent or any Lender that Guarantor does not
intend to be liable for any future Guaranteed Obligations or contests the validity or enforceability of this Guaranty.
(c) “Financing Commitment Agreement” means that certain Financing Commitment
Agreement, dated as of the date hereof, by and among Parent (as defined below), Western Metal (as defined below)
and Administrative Agent.
(d) “First Amendment” means that certain First Amendment to Loan and Security
Agreement dated as of the date hereof among, inter alia, Borrowers, Parent, the Subsidiaries and Affiliates of
Borrowers and Parent from time to time party thereto, Administrative Agent and the Lenders.
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(e) “Guaranteed Obligations” means (i) the full and timely payment of all Obligations,
(ii) the full, timely and complete compliance with, and punctual performance by Borrowers of, each and every
obligation, covenant, agreement, representation and warranty to be complied with or performed by Borrowers under
the Loan Documents, and (iii) the Enforcement Costs.
(f) “Lenders” means, collectively, the lenders from time to time a party to the Loan
Agreement and “Lender” means each of them.
(g) “Loan Agreement” means that certain Loan and Security Agreement, dated as of July
20, 2022 (as amended by the First Amendment and as the same may be further amended, supplemented, modified,
increased, renewed or restated from time to time), among, inter alia, Borrowers, Parent, the Subsidiaries and
Affiliates of Borrowers and Parent from time to time party thereto, Administrative Agent and the Lenders.
(h) “Loan Documents” shall have the meaning set forth in the Loan Agreement.
(i) “Negative Pledge” means that certain Negative Pledge Agreement dated as of the date
hereof, executed and delivered by Guarantor in favor of Administrative Agent for the benefit of Lenders pursuant to
which, among other things, Guarantor agrees not to sell or grant a security interest or lien in Guarantor’s equity
interest in ShareMD Holdings LLC, a Delaware limited liability company; provided that Guarantor may sell such
equity interests in connection with fulfilling its obligations under the Financing Commitment Agreement.
(j) “Obligations” shall have the meaning set forth in the Loan Agreement.
(k) “Parent” means PPS MSO Holdings, LLC, a Delaware limited liability company.
(l) “Western Metal” means Western Metal OZ, II, LP, a Delaware limited partnership.
Capitalized terms not otherwise defined herein shall have the meanings given such term in the Loan Agreement.
2. Guaranty.
(a) Continuing Guaranty and Suretyship Obligation. THIS GUARANTY IS A
CONTINUING GUARANTY AND SURETYSHIP AGREEMENT AND SHALL CONTINUE IN FORCE UNTIL
ALL GUARANTEED OBLIGATIONS HAVE BEEN PAID OR SATISFIED IN FULL AS DETERMINED BY
ADMINISTRATIVE AGENT AND NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER HAS ANY
FURTHER OBLIGATION OR COMMITMENT TO ADVANCE SUMS OR EXTEND ANY CREDIT FACILITY
TO BORROWERS AND ALL SUMS RECEIVED BY ADMINISTRATIVE AGENT OR ANY LENDER IN
PAYMENT OF THE OBLIGATIONS ARE NO LONGER SUBJECT TO RESCISSION OR REPAYMENT.
GUARANTOR EXPRESSLY AGREES THAT BORROWERS MAY CREATE OR INCUR OBLIGATIONS AND
MAY REPAY AND SUBSEQUENTLY CREATE OR INCUR OBLIGATIONS, ALL WITHOUT NOTICE TO
GUARANTOR, AND GUARANTOR SHALL BE BOUND THEREBY. ALL ADVANCES TO AND
BORROWINGS OF BORROWERS FROM ADMINISTRATIVE AGENT OR ANY LENDER SHALL
CONSTITUTE ONE SINGLE OBLIGATION GUARANTEED BY GUARANTOR PURSUANT TO THE
TERMS HEREOF.
(b) Exercise of Administrative Agent’s Rights. Guarantor understands and agrees that (a)
Administrative Agent may, at any time following the occurrence and during the existence of an Event of Default, at
its discretion, proceed against Guarantor and/or any security for this Guaranty in such order and manner as
Administrative Agent shall determine in its sole discretion; (b) Administrative Agent may, at any time following the
occurrence and during the existence of an Event of Default, proceed against the collateral, if any, securing this
Guaranty to obtain payment of the Guaranteed Obligations; and (c) to the extent any collateral for this Guaranty
secures any other obligations of Guarantor to Administrative Agent or any Lender, Administrative Agent may apply
such collateral and proceeds thereof to the Guaranteed Obligations and/or such other obligations in such order or
manner as Administrative Agent shall determine in its sole discretion.
3. Scope and Duration of Liability.
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(a) Primary Liability. The Guaranteed Obligations are primary, absolute, independent,
irrevocable and unconditional. This Guaranty is an agreement of suretyship as well as of guaranty and without
being required to proceed first against Borrowers or any other person or entity, or against any other security for the
Guaranteed Obligations, Administrative Agent may proceed directly against Guarantor upon the occurrence and
during the continuance of an Event of Default.
(b) Duration. This Guaranty shall remain in full force and effect until all of the Guaranteed
Obligations are fully, finally and irrevocably paid, complied with and performed and until all sums received by
Administrative Agent or any Lender thereunder are no longer subject to rescission or repayment upon the
bankruptcy, insolvency or reorganization of Borrowers or Guarantor. If at any time a payment or payments by
Borrowers or Guarantor on any of the Guaranteed Obligations, or any part thereof, are subsequently invalidated,
declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver or any other
person or entity under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of
such payment or payments, the Guaranteed Obligations intended to be satisfied shall be revived and continued in
full force and effect as if such payment or payments had not been made.
(c) Remedies. Upon the occurrence and during the continuance of an Event of Default,
Guarantor shall immediately, pay, comply with and perform such of the Guaranteed Obligations as Administrative
Agent shall direct, irrespective of whether the Guaranteed Obligations directed by Administrative Agent to be paid,
complied with and performed by Guarantor are those which gave rise to the Event of Default.
4. Unconditional Enforceability.
(a) Enforceability. The Guaranteed Obligations shall be unconditional and irrevocable,
irrespective of:
(i) the genuineness, validity or enforceability of any of the Loan Documents;
(ii) any limitation of liability of Borrowers or any other person or entity contained in
the Loan Documents;
(iii) the existence of any security given to secure the Loan Documents;
(iv) any change in Borrowers’ financial condition, operations, loan status or
collateral position;
(v) the impossibility or illegality of performance on the part of Borrowers of
Borrowers’ obligations under the Loan Documents;
(vi) any defense that may arise by reason of the incapacity or lack of authority of
Borrowers, Guarantor or any other person or entity or the failure of Administrative Agent or any Lender to file or
enforce a claim against the estate of any Borrower in any bankruptcy or other proceedings; and
(vii) any other circumstances, occurrences or conditions, whether similar or
dissimilar to any of the foregoing, which might otherwise constitute a legal or equitable defense, discharge or release
of Guarantor or any other surety.
(b) Acceleration. If Borrowers or any other person or entity defaults under the Loan
Documents and Administrative Agent is prevented from accelerating payment thereunder, either by operation of any
bankruptcy laws or otherwise, Administrative Agent shall be entitled to receive from Guarantor, upon demand by
Administrative Agent, the Guaranteed Obligations which would have otherwise been due and payable had such
acceleration occurred.
5. Release/Modification/Information. Administrative Agent may at any time and from time to
time, with or without consideration, release or discharge Guarantor, any Borrower or any one or more other
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guarantors of or sureties for any or all of the Guaranteed Obligations, agree to the substitution, exchange or release
of all or any part of the collateral securing the Obligations, obtain or receive any additional collateral or suretyship
obligations securing the Loan Documents, and/or modify, amend, increase, extend, renew or supplement any of the
Guaranteed Obligations or the Loan Documents, all without notice to or further consent from Guarantor. Except as
may be expressly agreed to by Administrative Agent in writing, none of the foregoing actions shall in any way affect
or diminish the liability of Guarantor under this Guaranty. Neither Administrative Agent nor any Lender has any
obligation or commitment of any kind to inform or advise Guarantor of any information, occurrences or events
regarding Borrowers or Borrowers’ financial condition, operations, loan status or collateral position, including,
without limitation, any material adverse change in such financial condition, operations, loan status or collateral
position. Guarantor acknowledges that Guarantor shall be solely responsible for keeping informed as to any of the
foregoing matters.
6. Subrogation. Guarantor hereby agrees that:
(a) Subordination. Any and all rights of subrogation that Guarantor may have against
Borrowers or against any collateral or security for any Obligations, and any and all rights of contribution, indemnity
and/or substitution that Guarantor may have against Borrowers or any other guarantor or surety, shall be junior and
subordinate to all Obligations, to any rights that Administrative Agent or any Lender may have against Borrowers,
to all right, title and interest that Administrative Agent or any Lender may have in any such collateral or security for
the Obligations, and to any right Administrative Agent or any Lender may have against such other guarantor or
surety. Administrative Agent may use, sell or dispose of any item of collateral or security for the Obligations as it
sees fit without regard to any subrogation rights Guarantor may have, and upon any such disposition or sale of such
collateral or security any rights of subrogation that Guarantor may have with respect to such collateral or security
shall terminate.
(b) Limitations. Until the Guaranteed Obligations shall have been indefeasibly paid in full,
Guarantor shall not take, or permit to be taken, any action to exercise (i) any right of subrogation arising in respect
of the Guaranteed Obligations, (ii) any right of contribution arising in respect of the Guaranteed Obligations that
Guarantor may have against any other guarantor or surety of the Guaranteed Obligations, (iii) any right to enforce
any remedy which Administrative Agent or any Lender now has or may hereafter have against Borrowers or (iv) any
benefit of, and any right to participate in, any security now or hereafter held by Administrative Agent or any Lender.
If any amount shall be paid to Guarantor on account of such subrogation or contribution rights at any time when all
Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for Administrative Agent
and Lenders and shall forthwith be paid over to Administrative Agent to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
7. Subordination of Other Obligations. The advance of any sums to Borrowers by Guarantor,
together with all indebtedness of Borrowers, now owed or hereafter incurred, to Guarantor shall be and hereby are
subordinated in payment and in all other respects to all Obligations. If Guarantor collects any of such sums or
indebtedness from Borrowers at any time when an Event of Default exists, or when there exists any event which
with the passage of time, delivery of notice or both would constitute an Event of Default, or when it is reasonably
foreseeable that the payment of such sums to Guarantor will render Borrowers financially unable to duly perform
any of Borrowers’ subsequent obligations under the Loan Documents, such collected funds shall be deemed
collected and received by Guarantor in trust for Administrative Agent and Lenders and shall be paid upon demand to
Administrative Agent for application, when received, on account of Borrowers’ obligations under the Loan
Documents. Nothing herein contained shall be construed to give Guarantor any rights of subrogation in or to the
Loan Documents or in all or any part of Administrative Agent’s or Lenders’ interest in the Loan Documents.
8. Representations. Guarantor represents and warrants to Administrative Agent that:
(a) Authority and Consents. Guarantor has the power, authority and legal right to enter
into, execute and deliver this Guaranty and each of the Loan Documents to which Guarantor is a party and all
actions, approvals and consents of any party necessary for Guarantor to validly execute and deliver this Guaranty
and each of such other Loan Documents have been obtained.
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(b) No Violation. The execution, delivery and performance by Guarantor of this Guaranty
and each of the other Loan Documents, the consummation of the transactions contemplated by the Loan Documents
and the fulfillment and compliance with the respective terms, conditions and provisions of the Loan Documents to
which Guarantor is a party will not conflict with, violate or constitute a default (or might, upon the passage of time
or the giving of notice or both, constitute a default) under any indenture, note, mortgage, loan, credit agreement,
instrument or any other document to which Guarantor is a party or by which Guarantor is bound or affected, or any
judgment or order of any court or governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
(c) Enforceability. This Guaranty and each of the other Loan Documents to which
Guarantor is a party is a legal, valid and binding obligation of Guarantor and is fully enforceable against Guarantor
in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws or equitable principles relating to or affecting the rights of creditors generally.
(d) No Default Under Other Obligations. Guarantor is not in default in the performance or
observance of any of its obligations, covenants or conditions contained in any indenture or other agreement creating,
evidencing or securing any indebtedness or obligation or pursuant to which any such indebtedness or obligations are
issued and Guarantor is not in violation of or in default under any other agreement or instrument or any judgment,
decree, order, statute, rule or governmental regulation, applicable to it or by which its properties may be bound or
affected.
(e) Governmental Consents. No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of Guarantor is required in connection with the
execution, delivery or performance by Guarantor of the Loan Documents or the consummation of the transactions
contemplated thereby.
(f) Review of Loan Documents. Guarantor’s authorized officers have examined the Loan
Documents.
(g) Benefit. Guarantor has an indirect financial interest in Borrowers, a direct financial
interest in certain other Loan Parties, and will benefit directly and indirectly from the execution of the Loan
Documents.
(h) Independent Review. Guarantor has executed this Guaranty after conducting its own
independent review and analysis of the financial condition and operations of Borrowers, and Guarantor has not
relied upon any representation, statement or information of or from Administrative Agent in connection with the
same.
(i) Judgments. There are no judgments outstanding or actions, suits or proceedings pending
or, to the best of Guarantor’s knowledge, threatened (in writing) against or affecting Guarantor, at law or in equity
or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign.
(j) Taxes. Guarantor has filed all tax returns which he is required to file and has paid, or
made provision for the payment of, all taxes which have or may have become due pursuant to such returns or
pursuant to any assessment received by Guarantor. Such tax returns are complete and accurate in all respects.
(k) Compliance. No Event of Default exists by Guarantor with respect to its obligations
under the Loan Documents.
(l) Accuracy of Loan Documents. No representation or warranty by Guarantor contained
herein or in any certificate or other document furnished by Guarantor pursuant hereto or in connection herewith fails
to contain any statement of material fact necessary to make such representation or warranty not misleading in light
of the circumstances under which it was made. There is no fact which Guarantor knows or would be reasonably
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expected to know and has not disclosed to Administrative Agent, which does or may materially and adversely affect
Guarantor.
9. Covenants. Guarantor will deliver or cause to be delivered to Administrative Agent each of the
following:
(a) [Reserved].
(b) [Reserved].
(c) Requested Information. With reasonable promptness, all such other data and
information in respect of the financial condition of Guarantor as Administrative Agent may reasonably request from
time to time.
10. Cross-Default. Guarantor covenants and agrees that (a) the occurrence of an Event of Default
shall constitute a default by Guarantor under any other agreements between Administrative Agent and Guarantor,
whether now existing or hereafter arising; and (b) the occurrence of a default (beyond any applicable notice and cure
period) or event of default under any other agreements between Administrative Agent and Guarantor, whether now
existing or hereafter arising, shall constitute an Event of Default hereunder.
11. Notices. All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail, sent by facsimile transmission
or sent by approved electronic communication in accordance with Section 10.02(b) of the Loan Agreement, as
follows:
To Guarantor: c/o PPS MSO Holdings, LLC
3162 Commodore Plaza, Suite 2G
Miami, Florida 33133
Attention: George Scopetta
Email: gscopetta@primeplasticsurgery.com
To Administrative Agent: White Oak Global Advisors, LLC
3 Embarcadero Center, Suite 550
San Francisco, CA 94111
Attention: Loan Portfolio Manager – Prime Plastic Surgery
Telecopy No. (415) 644-4199
With a copy to: Stradley Ronon Stevens & Young, LLP
457 Haddonfield Road, Suite 100
Cherry Hill, NJ 08002-2223
Facsimile: 215-564-8120
E-mail: mbonner@stradley.com
Attention: Michael P. Bonner, Esq.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed
to have been given when received, and notices sent by telefacsimile transmission or by means of approved electronic
communication shall be deemed to have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for
the recipient).
12. Cumulative Remedies. The rights, remedies, powers and privileges provided to Administrative
Agent and Lenders herein or in any of the Loan Documents shall not be deemed exclusive, but shall be cumulative
and shall be in addition to any other rights, remedies, powers and privileges of Administrative Agent and Lenders at
law or in equity.
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13. Waivers. Guarantor hereby fully, finally, unconditionally and irrevocably waives, to the
fullest extent permitted by applicable law, the following:
(a) Notices. Notice of acceptance of this Guaranty by Administrative Agent and any
notice of the incurring by Borrowers of any Guaranteed Obligations; presentment for payment, notice of
nonpayment or demand, demand, protest, notice of protest and notice of dishonor or default to any party
including Borrowers and Guarantor; notice of any change in Borrowers’ financial condition, operations, loan
status or collateral position; notice of any of the actions described in Section 5 hereof; and all other notices
(except to the extent expressly required pursuant to the Loan Documents) to which Guarantor may be
entitled but which may legally be waived.
(b) Demand. Demand for payment as a condition of liability under this Guaranty.
(c) Disability. Any disability of Borrowers or defense (other than defense of actual
payment) available to Borrowers, including absence or cessation of Borrowers’ liability for any reason
whatsoever.
(d) Defenses. Any defense (other than defense of actual payment) or circumstance
which might otherwise constitute a legal or equitable discharge of Guarantor or any surety, including,
without limitation, any obligation of Administrative Agent or any Lender to proceed against Borrowers prior
to exercising its rights against Guarantor hereunder.
(e) Possession/Marshalling. Any demand for possession of any collateral and any and
all rights to subrogation or realization on any of Borrowers’ property, including any right to require or
participate in the marshalling of Borrowers’ assets.
(f) Termination. Any and all right to terminate Guarantor’s obligations hereunder by
delivery of written notice to Administrative Agent or any Lender or otherwise.
(g) Limitations on Actions. All benefits under any present or future laws exempting
any property, real or personal, or any part of any proceeds thereof, from attachment, levy or sale under
execution, or providing for any stay of execution to be issued on any judgment recovered under any of the
Loan Documents or in any replevin or foreclosure proceedings, or otherwise providing for any valuation,
appraisal or exemption.
(h) Bond. Any requirement for bonds, security or sureties required by statute, court
rule or otherwise.
(i) Imperfections. Any and all errors, defects and imperfections in any action by
Administrative Agent or any Lender in replevin, foreclosure or other court process or in connection with any
other action related to any of the Loan Documents or the transactions contemplated therein.
14. Delay or Omission Not Waiver. Neither the failure nor any delay on the part of Administrative
Agent or any Lender to exercise any right, remedy, power or privilege under the Loan Documents upon the
occurrence and during the continuance of any Event of Default or otherwise shall operate as a waiver thereof or
impair any such right, remedy, power or privilege. No waiver of any Event of Default shall affect any later Event of
Default or shall impair any rights of Administrative Agent or any Lender. No single, partial or full exercise of any
rights, remedies, powers and privileges by the Administrative Agent or any Lender shall preclude further or other
exercise thereof. No course of dealing between Administrative Agent or any Lender and Borrowers or Guarantor
shall operate as or be deemed to constitute a waiver of Administrative Agent’s or any Lender’s rights under the Loan
Documents or affect the duties or obligations of Borrowers or Guarantor.
15. Binding Effect. This Guaranty and all rights and powers granted hereby will bind and inure to the
benefit of the parties hereto and their heirs, legal representatives, respective successors and assigns.
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16. Prior Guaranties. Nothing contained in this Guaranty is intended to release, supersede, modify
or otherwise affect any other guaranty or suretyship agreement from Guarantor to Administrative Agent or any
Lender.
17. Construction. For purposes of this Guaranty, the singular shall be deemed to include the plural
and the neuter shall be deemed to include the masculine and feminine as the context may require.
18. Severability. The provisions of this Guaranty and all other Loan Documents are deemed to be
severable, and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions
which shall continue in full force and effect.
19. Counterparts. This Guaranty may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties hereto may execute this Guaranty by
signing any such counterpart.
20. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, OTHER
THAN NEW YORK GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402.
21. Submission to Jurisdiction. GUARANTOR HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH
GUARANTOR IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND GUARANTOR
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURTS. GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT
AGAINST GUARANTOR OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
22. WAIVER OF VENUE. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 21. GUARANTOR HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
23. SERVICE OF PROCESS. GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 11. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAWS.
24. WAIVER OF RIGHT TO JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM. GUARANTOR REPRESENTS THAT IT
HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS
GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
25. Termination. This Guaranty shall terminate on the date on which (a) Guarantor shall have made
one or more cash equity contributions to Western Metal in an aggregate amount not less than $10,000,000 in order
for Western Metal to purchase Class A membership interests of Parent pursuant to Section 1(a) of the Financing
Commitment Agreement, and (b) and such purchase or purchases shall have closed and Parent shall have received
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the proceeds thereof. For the avoidance of doubt, equity contributions made by Guarantor to Western Metal to
fulfill any other obligation or consummate any purchase of Parent’s Equity Interests pursuant to any other provision
of the Financing Commitment Agreement, including, without limitation, Section 1(b) thereof, shall not qualify as
cash equity contributions to Western Metal under this Section 25.
26. LIMITATION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIABILITY OF
THE GUARANTOR UNDER THIS GUARANTY SHALL BE LIMITED TO THE SUM OF (I) $10,000,000 (THE “MAXIMUM
PRINCIPAL AMOUNT”) PLUS (II) ALL UNPAID INTEREST WHICH ACCRUES ON THE MAXIMUM PRINCIPAL AMOUNT
UNTIL PAID IN FULL, CALCULATED AT THE RATE PROVIDED FOR IN THE LOAN AGREEMENT, PLUS (III) ALL
ENFORCEMENT COSTS IN CONNECTION WITH THIS GUARANTY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-9- 5490498v.4
FILED: NEWID: 1198A9D4-3A1E-4171-89B2-AE5E63AA620D
YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024
DocuSign Envelope
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed the day and year first
above written.
George Scopetta
[Signature Page to Limited Guaranty]
Preview
FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 Exhibit A FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 LIMITED GUARANTY THIS LIMITED GUARANTY (this “Guaranty”) is made this 21st day of October, 2022 by GEORGE SCOPETTA, an individual (“Guarantor”), in favor of WHITE OAK GLOBAL ADVISORS, LLC, as administrative agent (“Administrative Agent”) for the Lenders (as defined below). BACKGROUND A. Lenders have previously agreed to extend certain credit facilities to PRIME PLASTIC SURGERY MANAGEMENT LLC, a Delaware limited liability company (“PPS MGMT”; together with any other Person that at any time after the date hereof becomes a Borrower, each a “Borrower” and collectively, the “Borrowers”). B. Lenders have now agreed to extend additional credit facilities to Borrowers as more fully set forth in the First Amendment (as defined below) in consideration of, inter alia, the covenants and obligations made and assumed by Guarantor as herein set forth and the granting of the Negative Pledge (as defined below) on the date hereof. C. Guarantor will benefit directly and indirectly from the extension of such additional credit facilities to Borrowers. NOW, THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, Guarantor irrevocably and unconditionally agrees as follows: 1. Definitions. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement. For purposes of this Guaranty: (a) “Enforcement Costs” means all attorneys’ fees, costs and expenses incurred by Administrative Agent or any Lender in connection, with any of the following after the occurrence and during the continuance of an Event of Default: (i) an attorney is retained to represent Administrative Agent or Lenders in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under this Guaranty; or (ii) an attorney is retained to provide advice or other representation in any proceedings whatsoever in connection with this Guaranty, including without limitation, for collection through any legal proceeding, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty as well as the other Loan Documents. (b) “Event of Default” shall include each of the following: (i) An Event of Default as defined under the Loan Agreement or any of the other Loan Documents; (ii) The failure of Guarantor to perform any of Guarantor’s obligations under this Guaranty; and (iii) Guarantor notifies Administrative Agent or any Lender that Guarantor does not intend to be liable for any future Guaranteed Obligations or contests the validity or enforceability of this Guaranty. (c) “Financing Commitment Agreement” means that certain Financing Commitment Agreement, dated as of the date hereof, by and among Parent (as defined below), Western Metal (as defined below) and Administrative Agent. (d) “First Amendment” means that certain First Amendment to Loan and Security Agreement dated as of the date hereof among, inter alia, Borrowers, Parent, the Subsidiaries and Affiliates of Borrowers and Parent from time to time party thereto, Administrative Agent and the Lenders. 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 (e) “Guaranteed Obligations” means (i) the full and timely payment of all Obligations, (ii) the full, timely and complete compliance with, and punctual performance by Borrowers of, each and every obligation, covenant, agreement, representation and warranty to be complied with or performed by Borrowers under the Loan Documents, and (iii) the Enforcement Costs. (f) “Lenders” means, collectively, the lenders from time to time a party to the Loan Agreement and “Lender” means each of them. (g) “Loan Agreement” means that certain Loan and Security Agreement, dated as of July 20, 2022 (as amended by the First Amendment and as the same may be further amended, supplemented, modified, increased, renewed or restated from time to time), among, inter alia, Borrowers, Parent, the Subsidiaries and Affiliates of Borrowers and Parent from time to time party thereto, Administrative Agent and the Lenders. (h) “Loan Documents” shall have the meaning set forth in the Loan Agreement. (i) “Negative Pledge” means that certain Negative Pledge Agreement dated as of the date hereof, executed and delivered by Guarantor in favor of Administrative Agent for the benefit of Lenders pursuant to which, among other things, Guarantor agrees not to sell or grant a security interest or lien in Guarantor’s equity interest in ShareMD Holdings LLC, a Delaware limited liability company; provided that Guarantor may sell such equity interests in connection with fulfilling its obligations under the Financing Commitment Agreement. (j) “Obligations” shall have the meaning set forth in the Loan Agreement. (k) “Parent” means PPS MSO Holdings, LLC, a Delaware limited liability company. (l) “Western Metal” means Western Metal OZ, II, LP, a Delaware limited partnership. Capitalized terms not otherwise defined herein shall have the meanings given such term in the Loan Agreement. 2. Guaranty. (a) Continuing Guaranty and Suretyship Obligation. THIS GUARANTY IS A CONTINUING GUARANTY AND SURETYSHIP AGREEMENT AND SHALL CONTINUE IN FORCE UNTIL ALL GUARANTEED OBLIGATIONS HAVE BEEN PAID OR SATISFIED IN FULL AS DETERMINED BY ADMINISTRATIVE AGENT AND NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER HAS ANY FURTHER OBLIGATION OR COMMITMENT TO ADVANCE SUMS OR EXTEND ANY CREDIT FACILITY TO BORROWERS AND ALL SUMS RECEIVED BY ADMINISTRATIVE AGENT OR ANY LENDER IN PAYMENT OF THE OBLIGATIONS ARE NO LONGER SUBJECT TO RESCISSION OR REPAYMENT. GUARANTOR EXPRESSLY AGREES THAT BORROWERS MAY CREATE OR INCUR OBLIGATIONS AND MAY REPAY AND SUBSEQUENTLY CREATE OR INCUR OBLIGATIONS, ALL WITHOUT NOTICE TO GUARANTOR, AND GUARANTOR SHALL BE BOUND THEREBY. ALL ADVANCES TO AND BORROWINGS OF BORROWERS FROM ADMINISTRATIVE AGENT OR ANY LENDER SHALL CONSTITUTE ONE SINGLE OBLIGATION GUARANTEED BY GUARANTOR PURSUANT TO THE TERMS HEREOF. (b) Exercise of Administrative Agent’s Rights. Guarantor understands and agrees that (a) Administrative Agent may, at any time following the occurrence and during the existence of an Event of Default, at its discretion, proceed against Guarantor and/or any security for this Guaranty in such order and manner as Administrative Agent shall determine in its sole discretion; (b) Administrative Agent may, at any time following the occurrence and during the existence of an Event of Default, proceed against the collateral, if any, securing this Guaranty to obtain payment of the Guaranteed Obligations; and (c) to the extent any collateral for this Guaranty secures any other obligations of Guarantor to Administrative Agent or any Lender, Administrative Agent may apply such collateral and proceeds thereof to the Guaranteed Obligations and/or such other obligations in such order or manner as Administrative Agent shall determine in its sole discretion. 3. Scope and Duration of Liability. -2- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 (a) Primary Liability. The Guaranteed Obligations are primary, absolute, independent, irrevocable and unconditional. This Guaranty is an agreement of suretyship as well as of guaranty and without being required to proceed first against Borrowers or any other person or entity, or against any other security for the Guaranteed Obligations, Administrative Agent may proceed directly against Guarantor upon the occurrence and during the continuance of an Event of Default. (b) Duration. This Guaranty shall remain in full force and effect until all of the Guaranteed Obligations are fully, finally and irrevocably paid, complied with and performed and until all sums received by Administrative Agent or any Lender thereunder are no longer subject to rescission or repayment upon the bankruptcy, insolvency or reorganization of Borrowers or Guarantor. If at any time a payment or payments by Borrowers or Guarantor on any of the Guaranteed Obligations, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver or any other person or entity under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or payments, the Guaranteed Obligations intended to be satisfied shall be revived and continued in full force and effect as if such payment or payments had not been made. (c) Remedies. Upon the occurrence and during the continuance of an Event of Default, Guarantor shall immediately, pay, comply with and perform such of the Guaranteed Obligations as Administrative Agent shall direct, irrespective of whether the Guaranteed Obligations directed by Administrative Agent to be paid, complied with and performed by Guarantor are those which gave rise to the Event of Default. 4. Unconditional Enforceability. (a) Enforceability. The Guaranteed Obligations shall be unconditional and irrevocable, irrespective of: (i) the genuineness, validity or enforceability of any of the Loan Documents; (ii) any limitation of liability of Borrowers or any other person or entity contained in the Loan Documents; (iii) the existence of any security given to secure the Loan Documents; (iv) any change in Borrowers’ financial condition, operations, loan status or collateral position; (v) the impossibility or illegality of performance on the part of Borrowers of Borrowers’ obligations under the Loan Documents; (vi) any defense that may arise by reason of the incapacity or lack of authority of Borrowers, Guarantor or any other person or entity or the failure of Administrative Agent or any Lender to file or enforce a claim against the estate of any Borrower in any bankruptcy or other proceedings; and (vii) any other circumstances, occurrences or conditions, whether similar or dissimilar to any of the foregoing, which might otherwise constitute a legal or equitable defense, discharge or release of Guarantor or any other surety. (b) Acceleration. If Borrowers or any other person or entity defaults under the Loan Documents and Administrative Agent is prevented from accelerating payment thereunder, either by operation of any bankruptcy laws or otherwise, Administrative Agent shall be entitled to receive from Guarantor, upon demand by Administrative Agent, the Guaranteed Obligations which would have otherwise been due and payable had such acceleration occurred. 5. Release/Modification/Information. Administrative Agent may at any time and from time to time, with or without consideration, release or discharge Guarantor, any Borrower or any one or more other -3- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 guarantors of or sureties for any or all of the Guaranteed Obligations, agree to the substitution, exchange or release of all or any part of the collateral securing the Obligations, obtain or receive any additional collateral or suretyship obligations securing the Loan Documents, and/or modify, amend, increase, extend, renew or supplement any of the Guaranteed Obligations or the Loan Documents, all without notice to or further consent from Guarantor. Except as may be expressly agreed to by Administrative Agent in writing, none of the foregoing actions shall in any way affect or diminish the liability of Guarantor under this Guaranty. Neither Administrative Agent nor any Lender has any obligation or commitment of any kind to inform or advise Guarantor of any information, occurrences or events regarding Borrowers or Borrowers’ financial condition, operations, loan status or collateral position, including, without limitation, any material adverse change in such financial condition, operations, loan status or collateral position. Guarantor acknowledges that Guarantor shall be solely responsible for keeping informed as to any of the foregoing matters. 6. Subrogation. Guarantor hereby agrees that: (a) Subordination. Any and all rights of subrogation that Guarantor may have against Borrowers or against any collateral or security for any Obligations, and any and all rights of contribution, indemnity and/or substitution that Guarantor may have against Borrowers or any other guarantor or surety, shall be junior and subordinate to all Obligations, to any rights that Administrative Agent or any Lender may have against Borrowers, to all right, title and interest that Administrative Agent or any Lender may have in any such collateral or security for the Obligations, and to any right Administrative Agent or any Lender may have against such other guarantor or surety. Administrative Agent may use, sell or dispose of any item of collateral or security for the Obligations as it sees fit without regard to any subrogation rights Guarantor may have, and upon any such disposition or sale of such collateral or security any rights of subrogation that Guarantor may have with respect to such collateral or security shall terminate. (b) Limitations. Until the Guaranteed Obligations shall have been indefeasibly paid in full, Guarantor shall not take, or permit to be taken, any action to exercise (i) any right of subrogation arising in respect of the Guaranteed Obligations, (ii) any right of contribution arising in respect of the Guaranteed Obligations that Guarantor may have against any other guarantor or surety of the Guaranteed Obligations, (iii) any right to enforce any remedy which Administrative Agent or any Lender now has or may hereafter have against Borrowers or (iv) any benefit of, and any right to participate in, any security now or hereafter held by Administrative Agent or any Lender. If any amount shall be paid to Guarantor on account of such subrogation or contribution rights at any time when all Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for Administrative Agent and Lenders and shall forthwith be paid over to Administrative Agent to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents. 7. Subordination of Other Obligations. The advance of any sums to Borrowers by Guarantor, together with all indebtedness of Borrowers, now owed or hereafter incurred, to Guarantor shall be and hereby are subordinated in payment and in all other respects to all Obligations. If Guarantor collects any of such sums or indebtedness from Borrowers at any time when an Event of Default exists, or when there exists any event which with the passage of time, delivery of notice or both would constitute an Event of Default, or when it is reasonably foreseeable that the payment of such sums to Guarantor will render Borrowers financially unable to duly perform any of Borrowers’ subsequent obligations under the Loan Documents, such collected funds shall be deemed collected and received by Guarantor in trust for Administrative Agent and Lenders and shall be paid upon demand to Administrative Agent for application, when received, on account of Borrowers’ obligations under the Loan Documents. Nothing herein contained shall be construed to give Guarantor any rights of subrogation in or to the Loan Documents or in all or any part of Administrative Agent’s or Lenders’ interest in the Loan Documents. 8. Representations. Guarantor represents and warrants to Administrative Agent that: (a) Authority and Consents. Guarantor has the power, authority and legal right to enter into, execute and deliver this Guaranty and each of the Loan Documents to which Guarantor is a party and all actions, approvals and consents of any party necessary for Guarantor to validly execute and deliver this Guaranty and each of such other Loan Documents have been obtained. -4- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 (b) No Violation. The execution, delivery and performance by Guarantor of this Guaranty and each of the other Loan Documents, the consummation of the transactions contemplated by the Loan Documents and the fulfillment and compliance with the respective terms, conditions and provisions of the Loan Documents to which Guarantor is a party will not conflict with, violate or constitute a default (or might, upon the passage of time or the giving of notice or both, constitute a default) under any indenture, note, mortgage, loan, credit agreement, instrument or any other document to which Guarantor is a party or by which Guarantor is bound or affected, or any judgment or order of any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (c) Enforceability. This Guaranty and each of the other Loan Documents to which Guarantor is a party is a legal, valid and binding obligation of Guarantor and is fully enforceable against Guarantor in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or equitable principles relating to or affecting the rights of creditors generally. (d) No Default Under Other Obligations. Guarantor is not in default in the performance or observance of any of its obligations, covenants or conditions contained in any indenture or other agreement creating, evidencing or securing any indebtedness or obligation or pursuant to which any such indebtedness or obligations are issued and Guarantor is not in violation of or in default under any other agreement or instrument or any judgment, decree, order, statute, rule or governmental regulation, applicable to it or by which its properties may be bound or affected. (e) Governmental Consents. No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of Guarantor is required in connection with the execution, delivery or performance by Guarantor of the Loan Documents or the consummation of the transactions contemplated thereby. (f) Review of Loan Documents. Guarantor’s authorized officers have examined the Loan Documents. (g) Benefit. Guarantor has an indirect financial interest in Borrowers, a direct financial interest in certain other Loan Parties, and will benefit directly and indirectly from the execution of the Loan Documents. (h) Independent Review. Guarantor has executed this Guaranty after conducting its own independent review and analysis of the financial condition and operations of Borrowers, and Guarantor has not relied upon any representation, statement or information of or from Administrative Agent in connection with the same. (i) Judgments. There are no judgments outstanding or actions, suits or proceedings pending or, to the best of Guarantor’s knowledge, threatened (in writing) against or affecting Guarantor, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (j) Taxes. Guarantor has filed all tax returns which he is required to file and has paid, or made provision for the payment of, all taxes which have or may have become due pursuant to such returns or pursuant to any assessment received by Guarantor. Such tax returns are complete and accurate in all respects. (k) Compliance. No Event of Default exists by Guarantor with respect to its obligations under the Loan Documents. (l) Accuracy of Loan Documents. No representation or warranty by Guarantor contained herein or in any certificate or other document furnished by Guarantor pursuant hereto or in connection herewith fails to contain any statement of material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made. There is no fact which Guarantor knows or would be reasonably -5- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 expected to know and has not disclosed to Administrative Agent, which does or may materially and adversely affect Guarantor. 9. Covenants. Guarantor will deliver or cause to be delivered to Administrative Agent each of the following: (a) [Reserved]. (b) [Reserved]. (c) Requested Information. With reasonable promptness, all such other data and information in respect of the financial condition of Guarantor as Administrative Agent may reasonably request from time to time. 10. Cross-Default. Guarantor covenants and agrees that (a) the occurrence of an Event of Default shall constitute a default by Guarantor under any other agreements between Administrative Agent and Guarantor, whether now existing or hereafter arising; and (b) the occurrence of a default (beyond any applicable notice and cure period) or event of default under any other agreements between Administrative Agent and Guarantor, whether now existing or hereafter arising, shall constitute an Event of Default hereunder. 11. Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by facsimile transmission or sent by approved electronic communication in accordance with Section 10.02(b) of the Loan Agreement, as follows: To Guarantor: c/o PPS MSO Holdings, LLC 3162 Commodore Plaza, Suite 2G Miami, Florida 33133 Attention: George Scopetta Email: gscopetta@primeplasticsurgery.com To Administrative Agent: White Oak Global Advisors, LLC 3 Embarcadero Center, Suite 550 San Francisco, CA 94111 Attention: Loan Portfolio Manager – Prime Plastic Surgery Telecopy No. (415) 644-4199 With a copy to: Stradley Ronon Stevens & Young, LLP 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002-2223 Facsimile: 215-564-8120 E-mail: mbonner@stradley.com Attention: Michael P. Bonner, Esq. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, and notices sent by telefacsimile transmission or by means of approved electronic communication shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). 12. Cumulative Remedies. The rights, remedies, powers and privileges provided to Administrative Agent and Lenders herein or in any of the Loan Documents shall not be deemed exclusive, but shall be cumulative and shall be in addition to any other rights, remedies, powers and privileges of Administrative Agent and Lenders at law or in equity. -6- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 13. Waivers. Guarantor hereby fully, finally, unconditionally and irrevocably waives, to the fullest extent permitted by applicable law, the following: (a) Notices. Notice of acceptance of this Guaranty by Administrative Agent and any notice of the incurring by Borrowers of any Guaranteed Obligations; presentment for payment, notice of nonpayment or demand, demand, protest, notice of protest and notice of dishonor or default to any party including Borrowers and Guarantor; notice of any change in Borrowers’ financial condition, operations, loan status or collateral position; notice of any of the actions described in Section 5 hereof; and all other notices (except to the extent expressly required pursuant to the Loan Documents) to which Guarantor may be entitled but which may legally be waived. (b) Demand. Demand for payment as a condition of liability under this Guaranty. (c) Disability. Any disability of Borrowers or defense (other than defense of actual payment) available to Borrowers, including absence or cessation of Borrowers’ liability for any reason whatsoever. (d) Defenses. Any defense (other than defense of actual payment) or circumstance which might otherwise constitute a legal or equitable discharge of Guarantor or any surety, including, without limitation, any obligation of Administrative Agent or any Lender to proceed against Borrowers prior to exercising its rights against Guarantor hereunder. (e) Possession/Marshalling. Any demand for possession of any collateral and any and all rights to subrogation or realization on any of Borrowers’ property, including any right to require or participate in the marshalling of Borrowers’ assets. (f) Termination. Any and all right to terminate Guarantor’s obligations hereunder by delivery of written notice to Administrative Agent or any Lender or otherwise. (g) Limitations on Actions. All benefits under any present or future laws exempting any property, real or personal, or any part of any proceeds thereof, from attachment, levy or sale under execution, or providing for any stay of execution to be issued on any judgment recovered under any of the Loan Documents or in any replevin or foreclosure proceedings, or otherwise providing for any valuation, appraisal or exemption. (h) Bond. Any requirement for bonds, security or sureties required by statute, court rule or otherwise. (i) Imperfections. Any and all errors, defects and imperfections in any action by Administrative Agent or any Lender in replevin, foreclosure or other court process or in connection with any other action related to any of the Loan Documents or the transactions contemplated therein. 14. Delay or Omission Not Waiver. Neither the failure nor any delay on the part of Administrative Agent or any Lender to exercise any right, remedy, power or privilege under the Loan Documents upon the occurrence and during the continuance of any Event of Default or otherwise shall operate as a waiver thereof or impair any such right, remedy, power or privilege. No waiver of any Event of Default shall affect any later Event of Default or shall impair any rights of Administrative Agent or any Lender. No single, partial or full exercise of any rights, remedies, powers and privileges by the Administrative Agent or any Lender shall preclude further or other exercise thereof. No course of dealing between Administrative Agent or any Lender and Borrowers or Guarantor shall operate as or be deemed to constitute a waiver of Administrative Agent’s or any Lender’s rights under the Loan Documents or affect the duties or obligations of Borrowers or Guarantor. 15. Binding Effect. This Guaranty and all rights and powers granted hereby will bind and inure to the benefit of the parties hereto and their heirs, legal representatives, respective successors and assigns. -7- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 16. Prior Guaranties. Nothing contained in this Guaranty is intended to release, supersede, modify or otherwise affect any other guaranty or suretyship agreement from Guarantor to Administrative Agent or any Lender. 17. Construction. For purposes of this Guaranty, the singular shall be deemed to include the plural and the neuter shall be deemed to include the masculine and feminine as the context may require. 18. Severability. The provisions of this Guaranty and all other Loan Documents are deemed to be severable, and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions which shall continue in full force and effect. 19. Counterparts. This Guaranty may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Guaranty by signing any such counterpart. 20. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402. 21. Submission to Jurisdiction. GUARANTOR HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH GUARANTOR IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURTS. GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST GUARANTOR OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION. 22. WAIVER OF VENUE. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 21. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. 23. SERVICE OF PROCESS. GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAWS. 24. WAIVER OF RIGHT TO JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM. GUARANTOR REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. 25. Termination. This Guaranty shall terminate on the date on which (a) Guarantor shall have made one or more cash equity contributions to Western Metal in an aggregate amount not less than $10,000,000 in order for Western Metal to purchase Class A membership interests of Parent pursuant to Section 1(a) of the Financing Commitment Agreement, and (b) and such purchase or purchases shall have closed and Parent shall have received -8- 5490498v.4 FILED: NEW YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 the proceeds thereof. For the avoidance of doubt, equity contributions made by Guarantor to Western Metal to fulfill any other obligation or consummate any purchase of Parent’s Equity Interests pursuant to any other provision of the Financing Commitment Agreement, including, without limitation, Section 1(b) thereof, shall not qualify as cash equity contributions to Western Metal under this Section 25. 26. LIMITATION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIABILITY OF THE GUARANTOR UNDER THIS GUARANTY SHALL BE LIMITED TO THE SUM OF (I) $10,000,000 (THE “MAXIMUM PRINCIPAL AMOUNT”) PLUS (II) ALL UNPAID INTEREST WHICH ACCRUES ON THE MAXIMUM PRINCIPAL AMOUNT UNTIL PAID IN FULL, CALCULATED AT THE RATE PROVIDED FOR IN THE LOAN AGREEMENT, PLUS (III) ALL ENFORCEMENT COSTS IN CONNECTION WITH THIS GUARANTY. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -9- 5490498v.4 FILED: NEWID: 1198A9D4-3A1E-4171-89B2-AE5E63AA620D YORK COUNTY CLERK 06/13/2024 02:05 PM INDEX NO. 652992/2024 DocuSign Envelope NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/13/2024 IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed the day and year first above written. George Scopetta [Signature Page to Limited Guaranty]