Exhibit 10.19
GUARANTY AND SUBORDINATION
This GUARANTY AND SUBORDINATION ("Guaranty") is made as of September 30,
1999, by EQUIVEST FINANCE, INC., a Delaware corporation ("Guarantor"), in favor
of FINOVA CAPITAL CORPORATION, a Delaware corporation ("Lender").
R E C I T A L S:
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A. Lender desires to extend a line of credit loan in a principal amount
not to exceed Twenty Million Dollars ($20,000,000) ("Loan") to RESORT FUNDING,
ING., a Delaware limited partnership ("Borrower"), pursuant to a Loan and
Security Agreement (Receivables Loans Warehouse Facility) of even date herewith
(as from time to time renewed, amended, restated or replaced, "Credit Facility
Agreement"). The Loan will be evidenced by a promissory note in the original
face amount of Twenty Million Dollars ($20,000,000) (as from time to time
renewed, amended, restated or replaced, "Note").
B. The Credit Facility Agreement, the Note, and all other documents
executed in connection with the Loan are hereinafter referred to as the "Loan
Documents." The obligations, covenants, agreements and conditions to be
performed, paid, observed and fulfilled by Borrower under the Loan Documents are
hereinafter referred to as the "Obligations."
C. In order to induce Lender to make the Loan, Borrower has offered to
procure and deliver this Guaranty executed by Guarantor whose principal place of
business or chief executive office is located at:
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
and Lender has agreed to make the Loan only if this Guaranty is executed by
Guarantor and delivered to Lender.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby unconditionally
covenants and agrees as follows:
ARTICLE 1
GUARANTY
1.1 Guarantor absolutely, unconditionally, irrevocably, jointly and
severally guarantees and becomes surety for the full, prompt, complete and
faithful performance, payment, observance and fulfillment by Borrower of all
Obligations, including, without limitation, repayment of the Loan in accordance
with the terms of the Note.
-18-
11728.18700.418581-2
1.2 Guarantor hereby covenants and agrees unconditionally that within (a)
five (5) days of the receipt of written notice from or on behalf of Lender to
the effect that there exists a breach or default of the Obligations which
Borrower has failed to pay or perform or (b) such unexpired grace period, if
any, as Borrower may then have under the Loan Documents to cure the breach or
default before it becomes an Event of Default (as defined in the Loan
Documents), whichever period is longer, Guarantor (x) will pay the entire unpaid
amount thereof to Lender at its offices at 0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000, or such other address as Lender may by notice
direct or (y) will provide Lender with evidence of the performance of the
Obligations which Borrower has failed to perform. If Guarantor fails to pay any
sums properly due Lender hereunder within the period applicable pursuant to the
terms of the preceding sentence, then, as to Guarantor, such sums shall bear
interest at the Default Rate (as defined in the Note) until paid.
ARTICLE 2
SUBORDINATION
2.1 Guarantor subordinates to the Obligations (a) all present and future
indebtedness (including, without limitation, any indebtedness arising from any
right of subrogation, indemnification, reimbursement or contribution) owed to
Guarantor ("Subordinated Indebtedness") and (b) all liens, security interests,
claims and right of any kind that Guarantor may now have or hereafter acquire
against Borrower and/or all other persons, excluding Guarantor, obligated to
Lender as guarantors or sureties for the Obligations (Borrower and all such
other persons, collectively, "Other Obligors") which secure, result from or
otherwise pertain to the Subordinated Indebtedness. Guarantor agrees that all
liens, security interests, claims and rights of any kind that Guarantor may now
have or hereafter acquire against Other Obligors and or the Other Obligors'
property ("Other Obligors' Property") which secure, result from or otherwise
pertain to the Subordinated Indebtedness shall be subordinate, inferior and
subject to the liens, security interests, claims and rights of Lender against
Other Obligors and/or Other Obligors' Property under the terms of any of the
Loan Documents or at law, whether direct or contingent or whether now or
hereafter created. Guarantor agrees that it may accept payments on the
Subordinated Indebtedness, if and only if, at the time of making such payment
and immediately upon giving effect thereto, neither an Event of Default nor an
Incipient Default (as defined in the Loan Documents) exists. Guarantor will not
demand or accept any payment(s) on the Subordinated Indebtedness from Borrower
when there exists an Event of Default or an Incipient Default, even if no
written notice of such an event has been provided. Any payment received by
Guarantor under such circumstances shall be deemed received in trust for Lender
and shall be immediately remitted to Lender. Notwithstanding anything herein to
the contrary, if any portion of the Subordinated Indebtedness becomes due and
payable prior to its stated maturity, Lender shall be entitled to receive full
payment and performance of the Obligations before the holder(s) thereof is/are
entitled to receive any payment of the Subordinated Indebtedness. Guarantor
grants to Lender a security interest in the Subordinated Indebtedness as
security for performance of its obligations under this Guaranty, which shall be
collected, enforced and received by the holder(s) thereof for Lender and be paid
over to Lender on an account of the obligations, but without reducing or
affecting in any manner the liability of Guarantor under any of the other
provisions of this Guaranty; and Guarantor shall remain liable for any
deficiency following any foreclosure of such security interest.
2.2 Guarantor will not take any action which will either (a) force the
sale of Other Obligors' Property in order to satisfy the Subordinated
Indebtedness or (b) affect in any manner any or all of Lender's liens, security
interests, claims or rights of any kind that Lender may now have or hereafter
acquire against Other Obligors and/or Other Obligors' Property. Guarantor will
refrain from taking any action which is in any way inconsistent with or in
derogation of this subordination or of the rights of Lender hereunder and
covenants to perform such further acts as necessary or appropriate to give
effect to this subordination. Without limiting the generality of the foregoing,
Guarantor will not assign any portion of the Subordinated Indebtedness, except
expressly subject to the terms of this Guaranty; and Guarantor shall cause all
evidence of the Subordinated Indebtedness to set forth the provisions hereof and
shall cause any instrument representing the Subordinated Indebtedness to be
endorsed with the following legend: "The indebtedness evidenced by this
instrument is subordinated, pursuant to a Guaranty and Subordination
("Guaranty") dated as of September __, 1999, by Equivest, Inc., in favor of
FINOVA Capital Corporation, to the prior payment in full of the Obligations (as
defined in the Guaranty)." Lender shall have the right to file, vote and collect
on behalf of Guarantor any proofs of claim Guarantor may have against any Other
Obligor in respect of the Subordinated Indebtedness in the event of any
bankruptcy or insolvency proceeding of such Other Obligor; and Guarantor hereby
appoints Lender as its attorney-in-fact for such purposes and to execute any and
all documents which Lender may consider necessary or desirable for such purpose.
ARTICLE 3
GENERAL COVENANTS AND WAIVERS OF GUARANTOR;
REMEDIES AND RIGHTS OF LENDER
3.1 Neither failure to give, nor defect in, any notice to Borrower or any
Other Obligor concerning a default in the performance of the Obligations (other
than a notice required pursuant to paragraph 1.2 or pursuant to the Credit
Facility Agreement), an Event of Default or any event which might mature into an
Event of Default shall extinguish or in any way affect the obligations of
Guarantor hereunder. Neither demand on, nor the pursuit of any remedies against,
Borrower or any Other Obligor shall be required as a condition precedent to, and
neither the pendency nor the prior termination of any action, suit or proceeding
against Borrower or any Other Obligor (whether for the same or a different
remedy) shall bear on or prejudice the making of a demand on Guarantor by Lender
and commencement against Guarantor after such demand, of any action, suit or
proceeding, at law or in equity, for the specific performance of any covenant or
agreement contained herein or for the enforcement of any other appropriate legal
or equitable remedy.
3.2 Guarantor's liability hereunder is direct and immediate and primary
and several with that of Borrower and each and every Other Obligor. Neither (a)
the exercise or the failure to exercise by Lender of any rights or remedies
conferred on it under the Loan Documents, hereunder or existing at law or
otherwise, or against any security for performance of the Obligations, (b) the
commencement of an action at law or the recovery of a judgment at law against
any Other Obligor and the enforcement thereof through levy or execution or
otherwise, (c) the taking or institution or any other action or proceeding
against any Other Obligor nor (d) any delay in taking, pursuing or exercising
any of the foregoing actions, rights, powers or remedies (even though requested
by Guarantor) by Lender or anyone acting for Lender, shall extinguish or affect
the obligations of Guarantor hereunder. Guarantor shall be and remain liable for
all the Obligations until fully paid and performed (and without limiting
Guarantor's obligations under paragraph 3.8), notwithstanding the previous
discharge (total or partial and with or without notice to or consent of
Guarantor) from further liability of Borrower or any Other Obligor with respect
thereto.
3.3 Guarantor hereby expressly waives: (a) notice of acceptance by Lender
of this Guaranty; (b) notice of the existence, creation or non-payment of all or
any of the Obligations, except as otherwise provided in paragraph 1.2 or in the
Credit Facility Agreement; (c) presentment, protest, demand, dishonor, notice of
dishonor, protest and all notices whatsoever, except as otherwise expressly
provided in paragraph 1.2 or in the Credit Facility Agreement; (d) all diligence
in collection or protection of or realization on the Obligations or any part
thereof, any obligation hereunder, or any security for or guarantee of any of
the foregoing; (e) any defense based upon an election of remedies by Lender or
marshaling of assets; (f) any defense arising because of Lender's election under
Section 1111(b)(2) of the United States Bankruptcy Code ("Bankruptcy Code") in
any proceeding instituted under the Bankruptcy Code; (g) any defense based on
post-petition borrowing or the grant of a security interest by Borrower under
Section 364 of the Bankruptcy Code; (h) any duty on the part of Lender to
disclose to Guarantor any facts Lender 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 known to Guarantor or has a reasonable
opportunity to communicate such facts to Guarantor, because Guarantor represents
and warrants that it is fully responsible for being and keeping informed of the
financial condition of Borrower and of all circumstances bearing on the risk of
non-payment of any Obligation; (i) any and all suretyship defenses and defenses
in the nature thereof under Arizona and/or any other applicable law, including,
without limitation, the benefits of the provisions of A.R.S. Sections 12-1641
through 12-1646, A.R.S. Section 33-814, A.R.C.P. Sections 17(f) and 21, and all
other laws and procedural rules of similar import; and (j) all rights and
defenses arising out of an election of remedies by Lender, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for an Obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against the principal. Without limiting the generality of the
foregoing, Guarantor waives all right and defenses that Guarantor may have
because Borrower's debt is at any time secured by real property. This means,
among other things: (a) Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by Borrower; and
(b) if Lender forecloses on any real property collateral pledged by Borrower:
(i) the amount of the debt may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if that collateral is worth
more than the sale price; and (ii) Lender may collect from Guarantor even if
Lender, by foreclosing on the real property collateral, has destroyed any right
Guarantor may have to collect from Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses Guarantor may have because
Borrower's debt is secured by real property. Furthermore, Guarantor waives all
rights and defenses arising out of an election of remedies by Lender, 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 the principal by the operation of the law
or otherwise.
3.4 Without limiting the generality of the foregoing, Guarantor will not
assert against Lender any defense of waiver, release, discharge in bankruptcy,
statute of limitations, res judicata, statute of frauds, anti-deficiency
statute, fraud, usury, illegality or unenforceability which may be available to
Borrower with respect to the Obligations, or any recoupment or set-off available
to Borrower against Lender, whether or not on account of a related transaction.
3.5 The benefits, remedies and rights provided or intended to be provided
hereby for Lender are in addition to and without prejudice to any rights,
benefits, remedies or security to which Lender might otherwise be entitled.
3.6 Anything else contained herein to the contrary notwithstanding,
Lender, from time to time, without notice to Guarantor (other than a notice
required pursuant to paragraph 1.2 or the Credit Facility Agreement), may take
all or any of the following actions without in any manner affecting or impairing
the obligations of Guarantor hereunder: (a) obtain a lien on or a security
interest in any property to secure any of the Obligations; (b) retain or obtain
the primary or secondary liability of any party or parties, in addition to
Guarantor, with respect to any of the Obligations; (c) renew, extend or
otherwise change the time for payment or performance of any of the Obligations
for any period; (d) release or compromise any liability of Guarantor hereunder
or any liability of any nature of any other party or parties with respect to the
Obligations; (e) exchange, enforce, waive, release and apply any security for
the performance of the Obligations and direct the order or manner of sale
thereof as Lender may in Lender's discretion determine; (f) resort to Guarantor
for payment of any of the Obligations or otherwise enforce the obligations
hereunder of Guarantor, whether or not Lender shall proceed against any other
party primarily or secondarily liable on any of the Obligations; (g) agree to
any amendment (including, without limitation, any amendment which changes the
amount of interest to be paid under the Loan Documents or extends the period of
time during which Borrower may borrow under the Loan Documents), any alteration
of the Loan Documents or any waiver of any of the provisions of the Loan
Documents and/or exercise Lender's rights to consent to any action or non-action
of Borrower which may violate the covenants and agreements contained in the Loan
Documents with or without consideration, on such terms and conditions as may be
acceptable to Lender in Lender's discretion; or (h) exercise any of Lender's
rights conferred by the Loan Documents or by law.
3.7 No delay on the part of Lender in the exercise of any right or remedy
under this Guaranty 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. No action of
Lender permitted hereunder shall in any way affect or impair the rights of
Lender or the obligations of Guarantor under this Guaranty.
3.8 If at any time all or any part of any payment theretofore applied by
Lender to any of the Obligations is or must be rescinded or returned by Lender
for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of Borrower), such Obligation(s), for purposes of
this Guaranty, to the extent that such payment is or must be rescinded or
returned, shall be deemed to have never been performed; and this Guaranty shall
continue to be effective or be reinstated, as the case may be, as to such
Obligations, all as though such application by Lender had not been made.
3.9 To the extent not prohibited by law, until the Obligations have been
paid and performed in full and Lender has no further obligation to extend credit
to Borrower under the Loan Documents, Guarantor shall have no right of
subrogation with respect to the Obligations or any right of indemnification,
reimbursement or contribution from any Other Obligor with respect to the
Obligations regardless of any payment made by Guarantor or received by Lender
pursuant to the provisions of this Guaranty; and Guarantor hereby
unconditionally waives any such right of subrogation, indemnification,
reimbursement or contribution for such period. To the extent any such right
cannot be waived, such right is subordinated to the Obligations and to the
obligations of Other Obligors to Lender in accordance with the provisions of
Article 2.
3.10 It is not necessary for Lender to inquire into the powers of Borrower
or Borrower's officers, directors, partners or agents purporting to act on its
behalf and the Obligations are hereby guaranteed, and the Subordinated
Indebtedness is hereby subordinated, notwithstanding the lack of power or
authority on the part of Borrower or anyone acting on the Borrower's behalf to
incur the Obligations.
3.11 If Guarantor shall (a) generally not be paying its debts as they
become due, (b) file, or consent by answer or otherwise to the filing against it
of a petition for relief or reorganization, arrangement or any other petition in
bankruptcy or insolvency under the laws of any jurisdiction, (c) make an
assignment for the benefit of its creditors, (d) consent to the appointment of a
custodian, receiver, trustee or other officer with similar powers for itself or
any substantial part of its property, (e) be adjudicated insolvent, (f) dissolve
or commence to wind-up its affairs, or (g) take any action for purposes of the
foregoing, at Lender's option, Guarantor will pay to Lender forthwith the whole
then unpaid amount of the Obligations ("Unpaid Amount") as if such Unpaid Amount
were then due and payable; and in any such event Lender, irrespective of whether
any demand shall have been made on Guarantor, Borrower or any Obligor by
intervention in or initiation of judicial proceedings relative to Guarantor, its
creditors or its property, may file and prove a claim or claims for the whole or
any portion of the Unpaid Amount or any portion thereof and file such other
papers or documents as may be necessary or advisable in order to have such claim
allowed in such judicial proceedings and to collect and receive any monies or
other property payable or deliverable on any such claim, and to distribute the
same; and any receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized to make such payments to Lender.
3.12 If Guarantor shall fail to pay any amount or perform any obligations
due Lender hereunder, Lender may institute and pursue any action or proceeding
to judgment or final decree and may enforce any such judgment or final decree
against Guarantor and collect in the manner provided by law out of its property,
wherever situated, the monies adjudged or decreed to be payable. Guarantor
agrees to maintain a net worth of not less than Forty Million Dollars
($40,000,000), without taking into account any amounts due Guarantor from
Borrower or any Affiliate (as defined in the Loan Agreement) of Guarantor and as
otherwise determined in accordance with generally accepted accounting
principles, applied on a consistent basis, as described in the Opinions of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and/or in statements of the Financial Accounting Standards Board
which are applicable to circumstances as of the date in question ("Minimum Net
Worth Requirement").
3.13 Guarantor agrees to maintain a net worth of not less than Forty
Million Dollars ($40,000,000), without taking into account any amounts due
Guarantor from Borrower or any Affiliate (as defined in the Loan Agreement) of
Guarantor and as otherwise determined in accordance with generally accepted
accounting principles, applied on a consistent basis, as described in the
Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants and/or in statements of the Financial Accounting
Standards Board which are applicable to circumstances as of the date in question
("Minimum Net Worth Requirement").
3.14 Guarantor will not, and will not permit or suffer Borrower to,
without obtaining the prior written consent of Lender, whether voluntarily or
involuntarily, by operation of law or otherwise: (a) transfer, sell, pledge,
convey, hypothecate, factor, or assign all or any portion of the Collateral (as
defined in the Loan Agreement); (b) lease or license any portion of the
Collateral, or change the legal or actual possession or use thereof; or (c)
permit the dilution, transfer, pledge, hypothecation, or encumbrance of any of
the stock of Borrower. Without limiting the generality of the preceding
sentence, and subject to the terms of this Guaranty, the prior written consent
of Lender shall be required for (A) any transfer of the Collateral or any part
thereof to a subsidiary or other Affiliate of Borrower or otherwise; (B) any
corporate merger or consolidation, disposition, or other reorganization of
Borrower or Guarantor, or the reclassification of any of the capital stock of
Borrower or Guarantor; or (C) any change in the ownership of Borrower or
Guarantor; provided, however, that notwithstanding the foregoing provisions of
this paragraph 3.14 to the contrary, Lender shall not unreasonably withhold its
consent to any of the actions specified in (A) through (C) above in the event
that: (X) the applicable successor to Borrower or Guarantor, as the case may be,
is an investment grade company with a minimum net worth as determined in
accordance with GAAP, of not less than an amount then approved by Lender, and
the Minimum Net Worth Requirement, respectively; and (Y) in the case of a
transfer pursuant to clause (A), the transferee assumes the obligations of
Borrower under the Loan Documents pursuant to a document satisfactory to Lender
without the release of Borrower or Guarantor and Borrower and Guarantor have
executed a document or documents satisfactory to Lender confirming their
respective obligations under the Loan Documents. In the event that Lender is
willing to consent to a transfer that would otherwise be prohibited by this
paragraph 3.14, Lender may condition its consent on such terms as it desires,
including, without limitation, an increase in the Interest Rate (as defined in
the Loan Agreement) and the requirement that Borrower pay a transfer fee,
together with any expenses incurred by Lender in connection with the granting of
such consent (including, without limitation, attorneys' fees and expenses). If
Borrower violates the terms of this paragraph 3.14, in addition to any other
rights or remedies which Lender may have hereunder, pursuant to any other Loan
Document, or at law or in equity, Lender may, upon written notice to Borrower,
increase, effective immediately as of the date of such violation, the Interest
Rate to the Default Rate.
ARTICLE 4
GUARANTOR'S WARRANTIES
4.1 Guarantor represents and warrants to Lender that:
(a) Guarantor is an affiliate of Borrower and will benefit from the
Loan and the execution and delivery of the Loan Documents;
(b) the execution, delivery and performance by Guarantor of this
Guaranty does not and will not conflict with or contravene any law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over Guarantor or its
activities, or conflict with or result in any default under any agreement
or instrument of any kind unto which Guarantor is a party or by which
Guarantor or its properties may be bound or affected, except for those as
to which consents have been obtained by Guarantor and delivered to Lender
and are in full force and effect;
(c) neither the execution and delivery by Guarantor of this Guaranty
nor the performance by Guarantor hereunder requires the consent, approval,
order or authorization of, or registration with, or the giving of notice
to any governmental authority, domestic or foreign, or any other person or
entity, except such consents as have been obtained by Guarantor and
delivered to Lender and are in full force and effect;
(d) this 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;
(e) there is no action, litigation or other proceeding pending or
threatened against Guarantor before any court, arbitrator or
administrative agency which in Guarantor's reasonable opinion will have a
materially adverse affect on its assets, business or financial condition
or which would prevent, hinder or jeopardize its performance under this
Guaranty;
(f) Guarantor is fully familiar with all of the covenants, terms and
conditions of the Loan Documents; it has been represented by counsel
chosen by it in connection with this Guaranty and the transaction
contemplated by the Loan Documents; and it has had the opportunity to
consult with such counsel prior to executing this Guaranty and any other
document which it is required to execute pursuant to the Credit Facility
Agreement;
(g) except for the agreement(s) disclosed on financial statements
previously submitted to Lender, Guarantor is not a party to any contract,
agreement, indenture or instrument or subject to any restriction which
individually or in the aggregate might materially adversely affect its
financial condition or businesses or which would in any way jeopardize the
ability of Guarantor to perform hereunder;
(h) all financial information delivered to Lender with respect to
Guarantor fairly and accurately represents the financial condition of
Guarantor;
(i) the execution and delivery of this Guaranty will not (based upon
the reasonable likelihood any contingent obligations shall become actual
obligations) (i) render Guarantor insolvent under generally accepted
accounting principles, (ii) leave Guarantor with remaining assets which
constitute unreasonably small capital given the nature of its business, or
(iii) result in the incurrence of debts (whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent) beyond
Guarantor's ability to pay them when and as they become due; and as used
in this subparagraph, "insolvent" means the present fair saleable value of
assets is less than the probable amount required to be paid on existing
debts when and as they mature;
(j) there are no oral or written conditions precedent to the
effectiveness of this Guaranty;
(k) except as may be otherwise disclosed in Schedule 1, there is no
existing indebtedness of Borrower to Guarantor, and Guarantor has no
obligation to extend credit to Borrower;
(l) Guarantor is a corporation duly organized and now existing in
good standing under the laws of the State of Delaware and is duly
qualified and in good standing and authorized to do business in all
jurisdictions wherein the location and nature of the properties used or
its business, as the same is presently or proposed to be conducted, makes
such qualification necessary; and will maintain its corporate existence
and right to carry on operations and acquire, maintain and renew all
rights, contracts, powers, privileges, leases, lands, sanctions and
franchises necessary or useful in the conduct of Guarantor's business
operations; Guarantor has the requisite power and authority to carry on
its business as presently conducted; and the execution, delivery and
performance by Guarantor of this Guaranty has been duly authorized by all
necessary corporate action; and
(m) all of its representations and warranties set forth in the Loan
Documents remain true and complete in all material respects, as if made on
the date hereof and made to include this Guaranty.
ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1 All the covenants, stipulations, promises and agreements contained in
this Guaranty by or on behalf of Guarantor are for the benefit of Lender, its
successors or assigns and shall bind Guarantor, and Guarantor's heirs,
executors, personal representatives, successors and assigns. Lender, without
notice of any kind, may sell, assign or transfer the Loan Documents, and in such
event each and every immediate and successive assignee or transferee thereof may
be given the right by Lender to enforce this Guaranty in full, by suit or
otherwise, for its own benefit. Guarantor agrees for the benefit of any such
assignee or transferee that Guarantor's obligations hereunder shall not be
subject to any reduction, abatement, defense, set-off, counterclaim or
recoupment for any reason whatsoever.
5.2 All notices, requests or demands required or permitted to be given
hereunder shall be in writing, and shall be deemed effective (a) upon hand
delivery, if hand delivered; (b) one (1) Business Day after such are deposited
for delivery via Federal Express or other nationally recognized overnight
courier service; or (c) three (3) Business Days after such are deposited in the
United States mails, certified or registered mail, all with delivery charges
and/or postage prepaid, and addressed as shown below, or to such other address
as the person being noticed may have designated in a notice given to the person
sought to be charged with the effect thereof. Written notice may be given by
telecopy to the telecopier number shown below or to such other telecopier number
as the person being noticed may have designated in a notice given to the person
sought to be charged with the effect thereof, which notice shall be effective on
the day of receipt if received during the recipient's normal business hours on
the day of receipt or otherwise on the next Business Day; provided that such
notice shall not be deemed effective unless not later than the next Business
Day, a copy of such notice is hand-delivered or deposited for delivery via
courier or in the United States mails in accordance with the requirements set
forth above. As used herein the term "Business Day" means a day other than a
Saturday, a Sunday, a national holiday, or a day on which banks in Phoenix,
Arizona are required to be closed. The notice addresses and telecopy numbers for
Guarantor and Lender are:
If to Lender:..... FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President - Resort Finance
Telecopy No.: (000) 000-0000
with a copy to:... FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President - Associate General Counsel
Telecopy No.: (000) 000-0000
If to Guarantor: . Equivest, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, President.
Telecopy No: (___) ___-____
5.3 Terms used and not otherwise defined herein shall have the same
meanings given thereto in the Loan Documents. The recitals set forth above are
incorporated herein by this reference.
5.4 CHOICE OF LAW, JURISDICTION AND VENUE; AND WAIVER OF JURY TRIAL.
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(a) THIS GUARANTY HAS BEEN DELIVERED IN THE STATE OF ARIZONA. THIS
GUARANTY AND THE RIGHTS, DUTIES AND OBLIGATIONS OF GUARANTOR AND LENDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF ARIZONA (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS)
AND TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE
UNITED STATES.
(b) EACH OF GUARANTOR AND (BY ITS ACCEPTANCE HEREOF) LENDER: (A)
HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS, JURISDICTION AND VENUE
OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA COUNTY, AND TO THE
PROCESS, JURISDICTION, AND VENUE OF THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR OTHER
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE SUBJECT
MATTER HEREOF, OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN WHICH
LENDER SHALL INITIATE SUCH ACTION AND THE CHOICE OF SUCH VENUE SHALL IN
ALL INSTANCES BE AT LENDER'S ELECTION; AND (B) WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY
OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT SUCH PERSON IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING
IS IMPROPER. EACH OF GUARANTOR AND (BY ITS ACCEPTANCE HEREOF) LENDER
HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY JUDGMENT OR ACTION IN
ANY OTHER FORUM.
(c) TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF GUARANTOR AND (BY ITS ACCEPTANCE HEREOF) LENDER
HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND OR CLARIFY ANY RIGHT, POWER, REMEDY, OR DEFENSE ARISING OUT OF OR
RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR
OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY PARTY; AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT
BEFORE A JURY. EACH OF GUARANTOR AND (BY ITS ACCEPTANCE HEREOF) LENDER
FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A
JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER, GUARANTOR HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDER, INCLUDING LENDER'S
COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
(d) GUARANTOR ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A
MATERIAL INDUCEMENT TO LENDER'S ACCEPTANCE OF THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS. THE WAIVER AND STIPULATIONS OF GUARANTOR AND LENDER IN
THIS PARAGRAPH SHALL SURVIVE THE FINAL PAYMENT OR PERFORMANCE OF ALL OF
THE OBLIGATIONS AND THE RESULTING TERMINATION OF THE GUARANTY.
[Guarantor initials _____]
[Lender initials ____]
5.5 If any provision of this Guaranty is held to be illegal, invalid,
unenforceable under present or future laws (all of which invalidating laws are
waived to the fullest extent possible), the legality, validity and
enforceability of the remaining provisions of this Guaranty shall not be
affected thereby. In lieu of each such illegal, invalid or unenforceable
provision, there shall be added to this Guaranty a provision that is legal,
valid and enforceable and as similar in terms to such illegal, invalid and
unenforceable provision as may be possible.
5.6 Time is of the essence in the performance of this Guaranty.
5.7 Guarantor, at its sole cost and expense, agrees to deliver and supply
Lender with a favorable opinion of its independent legal counsel, which counsel
must be acceptable to Lender, with respect to such matters as Lender may require
in its discretion and, to the best of such counsel's knowledge, confirming and
substantiating the truth and accuracy of Guarantor's representations and
warranties set forth in this Agreement.
5.8 If Lender undertakes to enforce this Guaranty against Guarantor,
Guarantor will pay to Lender in addition to any other amounts due hereunder, all
costs and expenses of collection, including, without limitation, attorneys' fees
and legal expenses, together with interest thereon at the Default Rate, whether
or not legal proceedings shall be instituted. If legal proceedings are
instituted by either party to enforce or interpret this Guaranty, to recover
damages for breach of this Guaranty, to obtain declaratory relief in connection
with this Guaranty, or otherwise to obtain judicial relief in connection
herewith, the prevailing party shall be entitled to recover attorneys' fees as
awarded by the court (and not by a jury) and all of the costs and expenses of
that litigation or proceeding, and any and all appeals therefrom, including, but
not limited to, taxable and nontaxable costs and expert witness fees, together
with interest on those attorneys' fees and costs and expenses at the Default
Rate. Without limiting the generality of the foregoing, in the event of the
commencement of a bankruptcy proceeding by or against Guarantor or otherwise
involving any Collateral, Lender shall, to the extent not already provided for
herein, be entitled to recover, and Guarantor shall be obligated to pay,
Lender's attorneys' fees and costs incurred in connection with: (i) any
determination of the applicability of the Bankruptcy Code to the terms of this
Guaranty or Lender's rights hereunder; (ii) any attempt by Lender to enforce or
preserve its rights under the Bankruptcy Code, or to prevent Guarantor from
seeking to deny Lender its rights thereunder; (iii) any effort by Lender to
protect, preserve or enforce its rights against any collateral for the
Obligations, or seeking authority to modify the automatic stay of Section 362 of
the Bankruptcy Code or otherwise seeking to engage in such protection,
preservation or enforcement; or (iv) any proceeding(s) arising under the
Bankruptcy Code, or arising in or related to a case under the Bankruptcy Code.
5.9 This Guaranty may be executed in counterparts, and any number of such
counterparts which have been executed by Guarantor and Lender shall constitute
one original. The telecopied signature of a person signing this Guaranty shall
be deemed an original signature of and be binding upon that person for all
purposes; provided, however, that if Guarantor delivers this Guaranty to Lender
by telecopy, Guarantor shall deliver to Lender a manually executed copy of this
Guaranty promptly after request therefor by Lender.
5.10 This Guaranty exclusively and completely states the rights and
obligations of Lender and Guarantor with respect to Guarantor's guaranty and
subordination. No modification, variation, termination, discharge, abandonment,
or waiver of any of the provisions or conditions of this Guaranty shall be valid
unless in writing and signed by duly authorized representatives of the party
sought to be bound by such action. This Guaranty supersedes any and all prior
representations, warranties and/or inducements, written or oral, heretofore made
by Lender concerning Guarantor's guaranty and subordination.
5.11 Guarantor has taken all action necessary to assure that there will be
no material adverse change to Guarantor's business by reason of the advent of
the year 2000, including, without limitation, that all computer-based systems,
embedded microchips and other processing capabilities effectively recognize and
process dates after April 1, 1999. Guarantor has taken all actions necessary in
Lender's reasonable judgment to assure that there will be no material adverse
change to Guarantor's business by reason of the advent of the year 2000,
including without limitation that all computer-based systems, embedded
microchips and other processing capabilities effectively recognize and process
all dates. Promptly after Lender's request from time to time, Guarantor shall
provide to Lender assurance reasonably acceptable to Lender that Guarantor's
computer-based systems, embedded microchips and other processing capabilities
effectively recognize and process all dates.
5.12 Unless otherwise specifically stipulated elsewhere in this Guaranty,
if a matter is left in the this Guaranty to the decision, right, requirement,
request, determination, opinion, approval, consent, waiver, satisfaction,
acceptance, agreement, option, election, or discretion of Lender, its employees,
Lender's counsel or any agent for or independent contractor of Lender, such
action shall be deemed to be exercisable by Lender or such other person in its
sole and absolute discretion and according to standards established in its sole
and absolute discretion. Without limiting the generality of the foregoing,
"option" and "discretion" shall be implied by use of the words "if" or "may".
However, whenever the Loan Documents contain the terms "reasonably satisfactory
to Lender," "reasonably determined by Lender," "reasonably acceptable to
Lender," "reasonable consent of Lender," "Lender shall reasonably elect,"
"Lender shall reasonably request," "reasonably approved by Lender" or similar
terms wherein the word reasonable or a derivative thereof is used with regard to
an action of Lender: (a) such terms shall mean satisfactory to, at the election
of, determined by, acceptable to or requested by, as applicable, Lender in its
sole (but reasonably exercised) discretion under standards applicable to
commercial lenders under the laws of the State of Arizona; and (b) it is the
intention of the parties to permit Lender a broad latitude in which to exercise
its discretion, acknowledging that, while such discretion may not be exercised
arbitrarily or capriciously, it may be exercised conservatively for Lender's
protection and benefit. By way of illustration, and not of limitation, it shall
not be unreasonable for Lender, in exercising its discretion, to make
conservative assumptions regarding the possible outcome of future events.
5.13 As used in this Guaranty, the term "attorneys' fees" includes the
reasonable fees of attorneys licensed to practice law in any jurisdiction, law
clerks, paralegals, investigators and others not admitted to the bar but
performing services under the supervision of a licensed attorney, and the
expenses (including, without limitation, normal and customary charges for
telecopy and photocopy services and clerical overtime) incurred by them in the
performance of their services.
IN WITNESS WHEREOF, this Guaranty is executed to be effective as of that
date first appearing above.
GUARANTOR:
EQUIVEST, INC.,
a Delaware corporation
By: /S/
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Type/Print Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
STATE OF _____________..)
) ss.
County of ______________ )
The foregoing instrument was acknowledged before me this ____ day of
_____________, 1999, by _______________________, the ____________________ of
Equivest, Inc., a Delaware corporation, for and on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public for the State and County aforesaid
My commission expires:
Lender hereby accepts this Guaranty and Subordination from Equivest, Inc., a
Delaware corporation.
LENDER: ...... FINOVA CAPITAL CORPORATION, a Delaware
corporation
By: /s/
Its: Xxxxx X.
XxXxxxxx, Vice President
SCHEDULE 1
INDEBTEDNESS OF BORROWER TO GUARANTOR
None
