Exhibit 4.5
GUARANTY BY CORPORATION
Denver, Colorado
March 31, 2003
This Guaranty, dated as of March 31, 2003, is made by Enhanced Memory Systems,
Inc., a Delaware corporation (the "Guarantor"), for the benefit of Xxxxx Fargo
Business Credit, Inc., a Minnesota corporation (with its participants,
successors and assigns, the "Lender").
Ramtron International Corporation, a Delaware corporation, Mushkin, Inc., a
Colorado corporation (collectively, the "Borrower"), the Lender, and the
Guarantor are parties to a Credit and Security Agreement of even date herewith
(as the same may be amended, supplemented or restated from time to time, the
"Credit Agreement") pursuant to which the Lender may make advances and extend
other financial accommodations to the Borrower.
As a condition to extending such credit to the Borrower, the Lender has
required the execution and delivery of this Guaranty.
ACCORDINGLY, the Guarantor, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
1. Definitions. Capitalized terms defined in the Credit Agreement that are
used but not otherwise defined herein shall have the meanings given them in
the Credit Agreement.
2. Indebtedness Guaranteed. The Guarantor hereby absolutely and
unconditionally guarantees to the Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of (i)
the Obligations and (ii) each and every other sum now or hereafter owing to
the Lender by the Borrower, including but not limited to, debts, liabilities
and obligations arising out of loans, credit transactions, financial
accommodations, discounts, purchases of property or other transactions with
the Borrower or for the Borrower's account or out of any other transaction or
event, owed to the Lender or owed to others by reason of participations
granted to or interests acquired or created for or sold to them by the Lender,
in each case whether now existing or hereafter arising, whether arising
directly in a transaction or event involving the Lender or acquired by the
Lender from another by purchase or assignment or as collateral security,
whether owed by the Borrower as drawer, maker, endorser, accommodation party,
guarantor, principal, surety or as a member of any partnership, syndicate,
association or group or in any other capacity, whether absolute or contingent,
direct or indirect, primary or secondary, sole, joint, several or joint and
several, secured or unsecured, due or not due, contractual, tortious or
statutory, liquidated or unliquidated, arising by agreement or imposed by law
or otherwise (all of said sums being hereinafter called the "Indebtedness").
3. Guarantor's Representations and Warranties. The Guarantor represents and
warrants to the Lender that (i) the Guarantor is a corporation, duly organized
and existing in good standing and has full power and authority to make and
deliver this Guaranty; (ii) the execution, delivery and performance of this
Guaranty by the Guarantor have been duly authorized by all necessary action of
its directors and stockholders and do not and will not violate the provisions
of, or constitute a default under, any presently applicable law or its
articles of incorporation or bylaws or any agreement presently binding on it;
(iii) this Guaranty has been duly executed and delivered by authorized
officers on behalf of the Guarantor and constitutes its lawful, binding and
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legally enforceable obligation, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor's rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law); and (iv) the authorization, execution, delivery and performance of
this Guaranty do not require notification to, registration with, or consent or
approval by, any federal, state or local regulatory body or administrative
agency. The Guarantor represents and warrants to the Lender that the Guarantor
has a direct and substantial economic interest in the Borrower and expects to
derive substantial benefits therefrom and from any loans, credit transactions,
financial accommodations, discounts, purchases of property and other
transactions and events resulting in the creation of the Indebtedness
guarantied hereby, and that this Guaranty is given for a corporate purpose.
The Guarantor agrees to rely exclusively on the right to revoke this Guaranty
prospectively as to future transactions, in accordance with paragraph 4, if at
any time, in the opinion of the directors or officers, the benefits then being
received by the Guarantor in connection with this Guaranty are not sufficient
to warrant the continuance of this Guaranty as to the future Indebtedness of
the Borrower. Accordingly, so long as this Guaranty is not revoked
prospectively in accordance with paragraph 4, the Lender may rely conclusively
on a continuing warranty, hereby made, that the Guarantor continues to be
benefited by this Guaranty and the Lender shall have no duty to inquire into
or confirm the receipt of any such benefits, and this Guaranty shall be
effective and enforceable by the Lender without regard to the receipt, nature
or value of any such benefits.
4. Unconditional Nature. No act or thing need occur to establish the
Guarantor's liability hereunder, and no act or thing, except full payment and
discharge of all of the Indebtedness, shall in any way exonerate the Guarantor
hereunder or modify, reduce, limit or release the Guarantor's liability
hereunder. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Guarantor, whether or not all of the Indebtedness is paid in full,
until this Guaranty is revoked prospectively as to future transactions, by
written notice actually received by the Lender, and such revocation shall not
be effective as to the amount of Indebtedness existing or committed for at the
time of actual receipt of such notice by the Lender, or as to any renewals,
extensions, refinancings or refundings thereof.
5. Dissolution or Insolvency of Guarantor. The dissolution or adjudication of
bankruptcy of the Guarantor shall not revoke this Guaranty, except upon actual
receipt of written notice thereof by the Lender and only prospectively, as to
future transactions, as herein set forth. If the Guarantor shall be dissolved
or shall be or become insolvent (however defined), then the Lender shall have
the right to declare immediately due and payable, and the Guarantor will
forthwith pay to the Lender, the full amount of all of the Indebtedness
whether due and payable or unmatured. If the Guarantor voluntarily commences
or there is commenced involuntarily against the Guarantor a case under the
United States Bankruptcy Code, the full amount of all Indebtedness, whether
due and payable or unmatured, shall be immediately due and payable without
demand or notice thereof.
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6. Limited Guaranty. Notwithstanding the aggregate amount of the Indebtedness
which may from time to time be outstanding, the Guarantor's liability
hereunder shall be limited to the greater of (a) the net amount of all
Advances made to the Borrower and then re-loaned or otherwise transferred to,
or for the benefit of, the Guarantor and (b) the amount which could be claimed
by the Lender from the Guarantor under this Guaranty without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of the United
States Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law. The Indebtedness may be created and continued in any amount, whether or
not in excess of such principal amount, without affecting or impairing the
Guarantor's liability hereunder, and the Lender may pay on account of the
Indebtedness (or allow for the payment of) the excess out of any sums received
by or available to the Lender from the Borrower or any other person (except
the Guarantor), from their properties, out of any collateral security or from
any other source, and such payment (or allowance) shall not reduce, affect or
impair the Guarantor's liability hereunder. Any payment made by the Guarantor
under this Guaranty shall be effective to reduce or discharge such liability
only if accompanied by a written transmittal document, received by the Lender,
advising the Lender that such payment is made under this Guaranty for such
purpose.
7. Subrogation. The Guarantor will not exercise or enforce any right of
contribution, reimbursement, recourse or subrogation available to the
Guarantor as to any of the Indebtedness, or against any person liable
therefor, or as to any collateral security therefor, unless and until all of
the Indebtedness shall have been fully paid and discharged.
8. Enforcement Expenses. The Guarantor will pay or reimburse the Lender for
all costs, expenses and reasonable attorneys' fees paid or incurred by the
Lender in endeavoring to collect and enforce the Indebtedness and in enforcing
this Guaranty.
9. Lender's Rights. The Lender shall not be obligated by reason of its
acceptance of this Guaranty to engage in any transactions with or for the
Borrower. Whether or not any existing relationship between the Guarantor and
the Borrower has been changed or ended and whether or not this Guaranty has
been revoked, the Lender may enter into transactions resulting in the creation
or continuance of the Indebtedness and may otherwise agree, consent to or
suffer the creation or continuance of any of the Indebtedness, without any
consent or approval by the Guarantor and without any prior or subsequent
notice to the Guarantor. The Guarantor's liability shall not be affected or
impaired by any of the following acts or things (which the Lender is expressly
authorized to do, omit or suffer from time to time, both before and after
revocation of this Guaranty, without consent or approval by or notice to the
Guarantor): (i) any acceptance of collateral security, guarantors,
accommodation parties or sureties for any or all of the Indebtedness; (ii) one
or more extensions or renewals of the Indebtedness (whether or not for longer
than the original period) or any modification of the interest rates,
maturities, if any, or other contractual terms applicable to any of the
Indebtedness or any amendment or modification of any of the terms or
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provisions of any loan agreement or other agreement under which the
Indebtedness or any part thereof arose; (iii) any waiver or indulgence granted
to the Borrower, any delay or lack of diligence in the enforcement of the
Indebtedness or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any of the Indebtedness; (iv) any full
or partial release of, compromise or settlement with, or agreement not to xxx,
the Borrower or any guarantor or other person liable in respect of any of the
Indebtedness; (v) any release, surrender, cancellation or other discharge of
any evidence of the Indebtedness or the acceptance of any instrument in
renewal or substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for the Indebtedness, or to see to the
proper or sufficient creation and perfection thereof, or to establish the
priority thereof, or to preserve, protect, insure, care for, exercise or
enforce any collateral security; or any modification, alteration,
substitution, exchange, surrender, cancellation, termination, release or other
change, impairment, limitation, loss or discharge of any collateral security;
(vii) any collection, sale, lease or disposition of, or any other foreclosure
or enforcement of or realization on, any collateral security; (viii) any
assignment, pledge or other transfer of any of the Indebtedness or any
evidence thereof; (ix) any manner, order or method of application of any
payments or credits upon the Indebtedness; and (x) any election by the Lender
under Section 1111(b) of the United States Bankruptcy Code. The Guarantor
waives any and all defenses and discharges available to a surety, guarantor or
accommodation co-obligor.
10. Waivers by Guarantor. The Guarantor waives any and all defenses, claims,
setoffs and discharges of the Borrower, or any other obligor, pertaining to
the Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantor will not assert, plead
or enforce against the Lender any defense of waiver, release, discharge or
disallowance in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Borrower or any
other person liable in respect of any of the Indebtedness, or any setoff
available against the Lender to the Borrower or any other such person, whether
or not on account of a related transaction. The Guarantor expressly agrees
that the Guarantor shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing the
Indebtedness, whether or not the liability of the Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The liability of the Guarantor shall not be affected or impaired by
any voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all of the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar event or proceeding affecting, the Borrower or any of its
assets. The Guarantor will not assert, plead or enforce against the Lender any
claim, defense or setoff available to the Guarantor against the Borrower. The
Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment and protest of any instrument evidencing the Indebtedness. The
Lender shall not be required first to resort for payment of the Indebtedness
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to the Borrower or other persons, or their properties, or first to enforce,
realize upon or exhaust any collateral security for the Indebtedness, before
enforcing this Guaranty.
11. If Payments Set Aside, etc. If any payment applied by the Lender to the
Indebtedness is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of the Borrower or any other obligor), the
Indebtedness to which such payment was applied shall for the purpose of this
Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Indebtedness as
fully as if such application had never been made.
12. Additional Obligation of Guarantor. The Guarantor's liability under this
Guaranty is in addition to and shall be cumulative with all other liabilities
of the Guarantor to the Lender as guarantor, surety, endorser, accommodation
co-obligor or otherwise of any of the Indebtedness or obligation of the
Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
13. Financial Information. The Guarantor will deliver to the Lender all
financial information concerning the Guarantor required to be delivered under
the Credit Agreement.
14. No Duties Owed by Lender. The Guarantor acknowledges and agrees that the
Lender (i) has not made any representations or warranties with respect to,
(ii) does not assume any responsibility to the Guarantor for, and (iii) has no
duty to provide information to the Guarantor regarding, the enforceability of
any of the Indebtedness or the financial condition of the Borrower or any
guarantor. The Guarantor has independently determined the creditworthiness of
the Borrower and the enforceability of the Indebtedness and until the
Indebtedness is paid in full will independently and without reliance on the
Lender continue to make such determinations.
15. Miscellaneous. This Guaranty shall be effective upon delivery to the
Lender, without further act, condition or acceptance by the Lender, shall be
binding upon the Guarantor and the successors and assigns of the Guarantor and
shall inure to the benefit of the Lender and its participants, successors and
assigns. Any invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and application
thereof, and to this end the provisions of this Guaranty are declared to be
severable. This Guaranty may not be waived, modified, amended, terminated,
released or otherwise changed except by a writing signed by the Guarantor and
the Lender. This Guaranty shall be governed by and construed in accordance
with the substantive laws (other than conflict laws) of the State of Colorado.
The Guarantor hereby (i) consents to the personal jurisdiction of the state
and federal courts located in the State of Colorado in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in
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any such forum is not convenient, (iii) agrees that any litigation initiated
by the Lender or the Guarantor in connection with this Guaranty may be venued
in either the state or federal courts located in City and County of Denver,
Colorado; and (iv) agrees that a final judgment in any such suit, 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.
16. Waiver of Jury Trial. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF,
BASED ON OR PERTAINING TO THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor the
date first written above.
ENHANCED MEMORY SYSTEMS, INC.
By /S/ XxXxx X. Xxxxxx
--------------------
XxXxx X. Xxxxxx
Chief Financial Officer
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
STATE OF Colorado)
)
COUNTY OF Denver )
The foregoing instrument was acknowledged before me on March 13, 2003, by
XxXxx X. Xxxxxx, the Chief Financial Officer of Enhanced Memory Systems, Inc.,
a Delaware corporation, on behalf of the corporation.
/S/ Xxxxx X. XxxXxxxxxx
------------------------
Xxxxx X. XxxXxxxxxx
Notary Public
My Commission Expires May 19, 2003
(Notary Seal)
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