Exhibit 4.23
FINOVA CAPITAL CORPORATION
FINOVA BUSINESS CREDIT
CONTINUING PERSONAL GUARANTY
FOR VALUE RECEIVED, and in consideration of any loan or other
financial accommodation heretofore or hereafter at any time made or granted
to PC DYNAMICS OF TEXAS, INC. ("Borrower"), by FINOVA CAPITAL CORPORATION
("Lender"), the undersigned. X. XXXXXX XXXXX ("Guarantor"), xxxxxx agrees as
follows:
1. Guaranty of Obligations. Guarantor unconditionally,
absolutely and irrevocably guarantees the full and prompt payment and
performance when due, whether by acceleration or otherwise, and at all times
thereafter, of all obligations of Borrower to Lender, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, or
now or hereafter existing or due or to become due, including, without
limitation, under or in connection with that certain Loan and Security
Agreement of even date, between Borrower and Lender (the "Loan Agreement")
and each of the documents, instruments and agreements executed and delivered
in connection therewith, as each may be modified, amended, supplemented or
replaced from time to time (all such obligations are herein referred to
collectively as the "Liabilities", and all documents evidencing or securing
any of the Liabilities are herein referred to, collectively, as the "Loan
Documents"). This Continuing Personal Guaranty (this "Continuing Guaranty")
is a guaranty of payment and performance when due and not of collection.
In the event of any default by Borrower in making payment of, or
default by Borrower in performance of, any of the Liabilities. Xxxxxxxxx
agrees on demand by Xxxxxx to pay and perform all of the Liabilities as are
then or thereafter become due and owing or are to be performed under the
terms of the Loan Documents. Guarantor further agrees to pay all expenses
(including reasonable attorneys' fees and expenses) paid or incurred by
Xxxxxx in endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this Continuing Guaranty.
2. Continuing Nature of Guaranty: and Liabilities. This
Continuing Guaranty shall be continuing and shall not be discharged,
impaired or affected by:
a. the insolvency of Borrower or the payment in full
of all of the Liabilities at any time or from time to time;
b. the power or authority or lack thereof of
Borrower to incur the Liabilities;
c. the validity or invalidity of any of the Loan
Documents or the documents securing the same;
d. the existence or non-existence of Borrower as a
legal entity;
e. any transfer by Borrower of all or any part of any
collateral in which Xxxxxx has been granted a lien or security
interest pursuant to the Loan Documents;
f. any statute of limitations affecting the liability
of Guarantor under this Continuing Guaranty or the Loan Documents or
the ability of Lender to enforce this Continuing Guaranty or any
provision of the Loan Documents; or
g. any right of offset, counterclaim or defense of
Guarantor, including, without limitation, those which have been waived
by Guarantor pursuant to Paragraph nine (9) hereof
3. Insolvency of Borrower or Guarantor. Without limiting
the generality of any other provision hereof Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower or Guarantor or the
inability of Borrower or Guarantor to pay their respective debts as they
mature, or an assignment by Borrower or Guarantor for the benefit of
creditors, or the institution of any proceeding by or against Borrower or
Guarantor alleging that Borrower or Guarantor is insolvent or unable to pay
their respective debts as they mature, Guarantor will pay to Lender
forthwith the full amount which would be payable hereunder by Guarantor if
all of the Liabilities were then due and payable, whether or not such event
occurs at a time when any of the Liabilities are otherwise due and payable.
4. Payment of the Liabilities. Any amounts received by
Lender from whatever source on account of the Liabilities may be applied by
Lender toward the payment of such of the Liabilities, and in such order of
application, as Lender may from time to time elect, and notwithstanding any
payments made by or for the account of Guarantor pursuant to this Continuing
Guaranty.
Guarantor agrees that, if at any time all or any part of any
payment theretofore applied by Lender to any of the Liabilities is or must
be rescinded or returned by Lender for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of
Borrower), such Liabilities shall, for the purposes of this Continuing
Guaranty and to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence notwithstanding such
application by Xxxxxx, and this Continuing Guaranty shall continue to be
effective or be reinstated, as the case may be, as to such Liabilities, all
as though such application by Xxxxxx had not been made
5. Permitted Actions of Lender. Lender may from time to
time, in its sole discretion and without notice to Guarantor, take any or
all of the following actions:
a. retain or obtain a security interest in any
assets of Borrower or any third party to secure any of the
Liabilities or any obligations of Guarantor hereunder;
b. retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to Guarantor, with
respect to any of the Liabilities;
c. extend or renew for one or more periods (whether
or not longer than the original period), alter or exchange any of the
Liabilities;
x. xxxxx, ignore or forbear from taking action or
otherwise exercising any of its default rights or remedies with
respect to any default by Borrower under the Loan Documents;
e. release, waive or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other
obligor primarily or secondarily obligated with respect to any of the
Liabilities;
f. release its security interest in, or surrender,
release or permit any substitution or exchange for, all or any part
of any collateral now or hereafter securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods
(whether or not longer than the original period) or release, waive,
compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and
g. demand payment or performance of any of the
Liabilities from Guarantor at any time or from time to time, whether
or not Lender shall have exercised any of its rights or remedies with
respect to any property securing any of the Liabilities or any
obligation hereunder or proceeded against any other obligor primarily
or secondarily liable for payment or performance of any of the
Liabilities.
6. Specific Waivers. Without limiting the generality of
any other provision of this Continuing Guaranty, Guarantor hereby expressly
waives:
a. notice of the acceptance by Xxxxxx of this
Continuing Guaranty;
b. notice of the existence, creation, payment,
nonpayment, performance or nonperformance of all or any of the
Liabilities;
c. presentment, demand, notice of dishonor, protest,
notice of protest and all other notices whatsoever with respect to
the payment or performance of the Liabilities or the amount thereof
or any payment or performance by Guarantor hereunder;
d. all diligence in collection or protection of or
realization upon the Liabilities or any thereof, any obligation
hereunder or any security for or guaranty of any of the foregoing;
e. any right to direct or affect the manner or timing
of Lenders enforcement of its rights or remedies;
f. any and all defenses which would otherwise arise
upon the occurrence of any event or contingency described in Paragraph
1 hereof or upon the taking of any action by Xxxxxx permitted
hereunder;
g. any defense, right of set-off, claim or
counterclaim whatsoever and any and all other rights, benefits,
protections and other defenses available to Guarantor now or at any
time hereafter; and
h. all other principles or provisions of law, if any,
that conflict with the terms of this Continuing Guaranty, including,
without limitation, the effect of any circumstances that may or might
constitute a legal or equitable discharge of a guarantor or surety.
7. Irrevocability. Guarantor hereby further waives all
rights to revoke this Continuing Guaranty at any time, and all rights to
revoke any agreement executed by Guarantor at any time to secure the payment
and performance of Guarantors obligations under this Continuing Guaranty.
8. Statutory Waiver of Rights and Defenses Regarding
Election of Remedies. Guarantor waives all rights and defenses arising out
of an election of remedies by Xxxxxx, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantors rights of subrogation and reimbursement
against Borrower by the operation of any applicable law, or otherwise.
9. Subordination. Guarantor hereby subordinates any and
all indebtedness of Borrower to Guarantor to the full and prompt payment and
performance of all of the Liabilities. Guarantor agrees that Xxxxxx shall be
entitled to receive payment of all Liabilities prior to Guarantor's receipt
of payment of any amount of any indebtedness of Borrower to Guarantor. Any
payments on such indebtedness to Guarantor, if Lender so requests, shall be
collected, enforced and received by Guarantor, in trust, as trustee for
Lender and shall be paid over to Lender on account of the Liabilities, but
without reducing or affecting in any manner the liability of Guarantor under
the other provisions of this Guaranty. Lender is authorized and empowered,
but not obligated, in its discretion, (a) in the name of Guarantor, to
collect and enforce, and to submit claims in respect of, any indebtedness of
Borrower to Guarantor and to apply any amounts received thereon to the
Liabilities, and (b) to require Guarantor (i) to collect and enforce, and to
submit claims in respect of, any indebtedness of Borrower to Guarantor, and
(ii) to pay any amounts received on such indebtedness to Lender for
application to the Liabilities
10. Subrogation. Guarantor will not exercise any rights
which it may acquire by way of subrogation under this Continuing Guaranty,
by any payment hereunder or otherwise, until all of the Liabilities have
been paid in full, in cash, and Lender shall have no further obligations to
Borrowers under the Loan Documents or otherwise. If any amount shall be paid
to Guarantor on account of such subrogation rights at any other time, such
amount shall be held in trust for the benefit of Lender and shall be
forthwith paid to Lender to be credited and applied to the Liabilities,
whether matured or unmatured, in such manner as Lender shall determine in
its sole discretion.
11. Assignment of Xxxxxx's Rights. Lender may, from time
to time, without notice to Guarantor, assign or transfer any or all of the
Liabilities or any interest therein and, notwithstanding any such assignment
or transfer of the Liabilities or any subsequent assignment or transfer
thereof, the Liabilities shall be and remain the Liabilities for the purpose
of this Continuing Guaranty. Each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of such party's interest in the Liabilities, be
entitled to the benefits of this Continuing Guaranty to the same extent as
if such assignee or transferee were Lender; provided, however, that unless
Lender shall otherwise consent in writing, Lender shall have an unimpaired
right, prior and superior to that of any such assignee or transferee, to
enforce this Continuing Guaranty for its own benefit as to those of the
Liabilities which Xxxxxx has not assigned or transferred.
12. Indulgences Not Waivers. No delay in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or
partial exercise by Lender of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy; nor
shall any modification or waiver of any of the provisions of this Continuing
Guaranty be binding upon Lender, except as expressly set forth in a writing
duly signed and delivered by Xxxxxx. No action of Xxxxxx permitted hereunder
shall in any way affect or impair the rights of Lender or the obligations of
Guarantor under this Continuing Guaranty
13. Financial Condition of Borrower. Guarantor represents
and warrants that it is fully aware of the financial condition of Xxxxxxxx,
and Guarantor delivers this Continuing Guaranty based solely upon its own
independent investigation of Xxxxxxxx's financial condition and in no part
upon any representation or statement of Lender with respect thereto.
Guarantor further represents and warrants that it is in a position to and
hereby does assume full responsibility for obtaining such additional
information concerning Borrowers financial condition as Guarantor may deem
material to its obligations hereunder, and Guarantor is not relying upon,
nor expecting Lender to furnish it any information in Xxxxxx's possession
concerning Xxxxxxxx's financial condition or concerning any circumstances
bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Liabilities.
Guarantor hereby waives any duty on the part of Lender to
disclose to Guarantor any facts it may now or hereafter know about Borrower,
regardless of whether Lender has reason to believe that any such facts
materially increase the risk beyond that which Guarantor intends to assume
or has reason to believe that such facts are unknown to Guarantor
Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of "Continuing Guaranty" which includes,
without limitation, the possibility that Borrower will contract for
additional indebtedness for which Guarantor may be liable hereunder after
Xxxxxxxx's financial condition or ability to pay its lawful debts when they
fall due has deteriorated.
14. Representations and Warranties. Guarantor represents
and warrants to Lender that each of the following statements is accurate and
complete as of the date of this Continuing Guaranty:
a. this Continuing Guaranty has been duly executed
and delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement
of creditors' rights generally;
b. the execution, delivery and performance of this
Continuing Guaranty do not (i) violate any provisions of law or any
order of any court or other agency of government (each, a
"Requirement of Law"), (ii) contravene any provision of any material
contract or agreement to which Guarantor is a party or by which
Guarantor or Guarantor's assets are bound (each, a "Contractual
Obligation"), or (iii) result in the creation or imposition of any
lien, charge or encumbrance of any nature upon any property, asset or
revenue of Guarantor;
c. all consents, approvals, orders and
authorizations of, and registrations, declarations and filings with,
any governmental agency or authority or other person or entity
(including, without limitation, the shareholders or partners of any
entity), if any, which are required to be obtained in connection with
the execution and delivery of this Continuing Guaranty or the
performance of Guarantor's obligations hereunder have been obtained,
and each is in full force and effect;
d. Guarantor has paid all, taxes and other charges
imposed by any governmental agency or authority due and payable by
Guarantor other than those which are being challenged in good faith
by appropriate proceedings;
e. Guarantor is not in violation of any Requirement
of Law or Contractual Obligation other than any violation the
consequences of which could not have a material adverse effect on
Guarantor's ability to perform its obligations hereunder (a "Material
Adverse Effect"); and
f. no action, proceeding, investigation or litigation
is pending or, to the knowledge of Grantor, overtly threatened against
Guarantor by any person or entity which, if adversely determined,
could have a Material Adverse Effect.
15. Guarantor Financial Information. Guarantor will
provide Lender in writing such financial and other information with respect
to Guarantor's assets and liabilities as Lender shall reasonably request
from time to time, in form satisfactory to Lender.
16. Binding Upon Successors: Death of Guarantor. This
Continuing Guaranty shall be binding upon Guarantor and Guarantor's
successors and assigns and shall inure to the benefit of Lender and its
successors and assigns. This Continuing Guaranty shall not terminate or be
revoked upon the death of Guarantor, notwithstanding any knowledge by Xxxxxx
of Guarantor's death.
All references herein to Borrower shall be deemed to include its
successors and assigns, and all references herein to Guarantor shall be
deemed to include Guarantor and Guarantor's successors and assigns or, upon
the death of Guarantor, the duly appointed representative, executor or
administrator of Guarantor's estate.
In addition and notwithstanding anything to the contrary
contained in this Continuing Guaranty or in any other document, instrument
or agreement between or among any of Lender, Borrower, Guarantor or any
third party, the obligations of Guarantor with respect to the Liabilities
shall be joint and several with any other person or entity that now or
hereafter executes a guaranty of any of the Liabilities separate from this
Continuing Guaranty.
17. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be either personally delivered,
transmitted by facsimile to the facsimile numbers provided herein or sent by
United States certified or registered mail, return receipt requested,
addressed to Guarantor or Lender at their respective addresses stated below
or at such other address as either party hereafter notifies the other party
as herein provided. Notices shall be deemed received on the earlier of (i)
the date noted on the return receipt as delivered if mail delivery of the
notice is successful or the date inscribed on a confirmation of successful
transmission, if sent by facsimile; (ii) the last date of attempted
delivery, as noted by the United States Postal Service on the envelope
containing the notice, if mail delivery is unsuccessful; or (iii) the date
of the actual delivery if personally delivered.
18. Governing Law: Additional Waivers. This Continuing
Guaranty has been delivered and shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Arizona.
GUARANTOR HEREBY
(i) WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE
OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS CONTINUING
GUARANTY, AND ACKNOWLEDGES THAT XXXXXX ALSO WAIVES SUCH RIGHT
(ii) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE
ORFEDERAL COURT LOCATED IN MARICOPA COUNTY, ARIZONA, OVER ANY ACTIONOR
PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO
THIS CONTINUING GUARANTY;
(iii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT GUARANTOR MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING;
(iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other
jurisdictions by suit on the judgment or in any other manner provided
by law; and
(v) agrees not to institute any legal action or proceeding
against Lender or any of Xxxxxx's directors, officers, employees,
agents or property concerning any matter arising out of or relating to
this Continuing Guaranty in any court other than one located in
Maricopa County, Arizona.
Nothing herein shall affect or impair Lenders right to serve
legal process in any manner permitted by law or Xxxxxx's right to bring any
action or proceeding against Guarantor or its property in the courts of any
other jurisdiction. Wherever possible each provision of this Continuing
Guaranty shall be interpreted as to be effective and valid under applicable
law, but if any provision of this Continuing Guaranty shall be prohibited by
or invalid under such law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Continuing Guaranty.
19. ADVICE OF COUNSEL. GUARANTOR ACKNOWLEDGES THAT
GUARANTOR HAS EITHER OBTAINED THE ADVICE OF COUNSEL OR HAS HAD THE
OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTION WITH THE TERMS AND
PROVISIONS OF THIS CONTINUING GUARANTY.
20. Entire Agreement. This Continuing Guaranty contains
the complete understanding of the parties hereto with respect to the subject
matter herein. Guarantor acknowledges that Guarantor is not relying upon any
statements or representations of Lender not contained in this Continuing
Guaranty and that such statements or representations, if any, are of no
force or effect and are fully superseded by this Continuing Guaranty. This
Continuing Guaranty may only be modified by a writing executed by Guarantor
and Xxxxxx.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Continuing
Guaranty this 25th day of March, 1999.
X. Xxxxxx Xxxxx
"Guarantor"
By: /s/
--------------------------
D. Xxxxxx Xxxxx
SSN: [ deleted for confidentiality ]
[ deleted for confidentiality ]
Dallas, Texas 75248
Facsimile:
[ deleted for confidentiality ]
Xxxxxx's address for notices:
FINOVA Capital Corporation
Attn:Xxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
