CONTINUING CORPORATE GUARANTY
FOR VALUE RECEIVED, and in consideration of any loan or other
financial accommodation heretofore or hereafter at any time made or granted to
AMERICAN FACTORS GROUP, INC. ("Borrower"), by FINOVA CAPITAL CORPORATION
("Lender"), the undersigned, MEDLEY CREDIT ACCEPTANCE CORPORATION
("Guarantor"), hereby 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 Corporate Guaranty
(this "Continuing Guaranty") is a guaranty of payment and performance when due
and not of collection.
In the event of any default by Xxxxxxxx in making payment of,
or default by Borrower in performance of, any of the Liabilities, Guarantor
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 [9] hereof.
3. Insolvency of Borrower or Guarantor. Without limiting the
generality of any other provision hereof, Xxxxxxxxx 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
- 2 -
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;
- 3 -
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
Lender's 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 Guarantor's 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 Guarantor's 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.
- 4 -
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
- 5 -
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 Xxxxxxxx's
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 Borrower'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.
- 6 -
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.
- 7 -
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.
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.
- 8 -
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 OR
FEDERAL COURT LOCATED IN MARICOPA COUNTY, ARIZONA, OVER ANY ACTION OR
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 Lender'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 Xxxxxx's 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
- 9 -
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 ____ day of May, 1998
MEDLEY CREDIT ACCEPTANCE CORPORATION , "Guarantor"
____________________________________
Fed ID#]______________________
Guarantor's address
for notices:
____________________________________
____________________________________
____________________________________
Facsimile:
Xxxxxx's address for notices:
FINOVA Capital Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10018
Facsimile: (000) 000-0000
- 10 -
