Exhibit 4.2
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GUARANTY
TO: GMAC COMMERCIAL CREDIT LLC
In consideration of your entering into or your refraining from terminating at
this time a Revolving Credit and Security Agreement with MORGAN DRIVE AWAY, INC.
and TDI, INC. (individually and collectively, jointly and severally the
"Client"), bearing the effective date of July 27, 2001 (said Revolving Credit
and Security Agreement as heretofore or hereafter amended, supplemented and/or
restated is hereinafter called the "Agreement") the undersigned hereby
guarantees to GMAC Commercial Credit LJ.C (hereinafter called the "Company"),
its successors and assigns, the prompt payment at maturity, or whenever they may
become due in accordance with any of their terms, of all now existing and
hereafter arising liabilities. indebtedness and obligations of the Client to the
Company (including "Obligations," as defined in the Agreement, if such term is
defined therein), whenever and however arising or acquired by the Company,
whether direct or indirect, absolute or contingent (collectively, the
"Obligations") and whether the sum may now be or hereafter become due from the
Client or the executors, administrators, successors or assigns of the Client,
including the cost of protest and all legal expenses of or for collection, or
for realization upon any collateral for the Obligations("Collateral") or other
guaranty. If this guaranty and/or any Obligation is placed with an attorney for
collection, the undersigned further agrees to pay reasonable attorney's fees
which shall be recoverable with the amount due under this guaranty.
Demand of payment, presentment, protest and notice of dishonor or non-payment
are hereby expressly waived, and if any of the Obligations are payable on
demand, the Company may, in its sole and absolute discretion, determine the
reasonableness of the period, if any, to elapse prior to the making of demand.
The undersigned hereby consents and agrees that, without notice to or further
assent from the undersigned, the time of payment of all or any of the
Obligations, or any other provisions of the Obligations, nay be extended,
changed or modified, the parties thereto discharged, any or all Collateral
released without obtaining other Collateral in substitution therefor, and any
composition or settlement consummated and accepted, and that the undersigned
will remain bound upon this guaranty notwithstanding one or more such
extensions, changes, modifications, discharges, releases, compositions or
settlements. The undersigned further consents and agrees that this guaranty
shall not be impaired or otherwise affected by any failure to call for, take,
hold, protect or perfect, continue the perfection of or enforce any security
interest in or other lien upon, any Collateral or by any failure to exercise,
delay in the exercise, exercise or waiver of, or forbearance or other indulgence
with respect to, any right or remedy available to the Company. Any statement of
account which is binding on the Client under the Agreement shall be binding on
the undersigned for all purposes under this guaranty.
The Company may also at any time in its discretion sell, assign, transfer and
deliver the whole of the Collateral, or any part thereof, or any substitutes
therefore or any additions thereto, at public or private sale, at any time or
place rejected by the Company, at such prices as it may deem best and either for
cash or for credit or future delivery, at the option of the Company without
either demand, advertisement or notice of any kind to the undersigned, which are
hereby expressly waived.
The undersigned assigns, pledges and grants a security interest to the Company
in any money or property belonging to the undersigned at any time in the
possession of the Company or in the possession of any parent affiliate or
subsidiary of the Company (hereinafter called a "Related Company"), including
any deposit balances and all property held by the Company or a Related Company
for any purpose including safekeeping, custody, transmission, collection, or
pledge. and all proceeds of the foregoing, as security for the performance by
the undersigned of the obligations under this guaranty, whether due or not, with
full power and authority to apply any such money, property and proceeds to the
extinguishment of any such obligations and to sell, enforce, collect or
otherwise realize on said money, property or proceeds in accordance with
applicable law.
The undersigned agrees that the Company is not to be obligated in any manner to
inquire into the powers of the Client, or its successors, its or their
directors, officers, or agents. noting or purporting to act on its or their
behalf and any liabilities purporting to be contacted for the Client, or its
successors, by its or their directors, officers, or agents, in the professed
exercise of such powers, shall be deemed to form a part of the liabilities
guaranteed hereunder even though the incurrence of such liabilities be in excess
of the powers of the Client, its successors, or its or their directors,
officers, or agents aforesaid, or shall be in any way irregular, defective or
informal.
The liability of the undersigned on this guaranty shall be direct, immediate,
absolute, continuing, unconditional, unlimited and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense hereto. Such
liability shall not be conditional or contingent upon the pursuit by the Company
of whatever remedies it way have against the Client or the Client's successors,
executors, administrators or assigns, or the security or liens it may possess,
and this guaranty shall be and shall be construed as being and intended to be, a
continuing guaranty of the payment of any and all Obligations either made,
endorsed or contracted by the Client or any successor of the Client, prior to
the receipt by the Company of written notice of the revocation of this guaranty
by the undersigned, and of all extensions or renewals thereof in whole or in
part; and notwithstanding the death of, or the revocation of this guaranty by,
the undersigned guarantor, the liability of the guarantor so revoking and of the
estate of the guarantor who dies shall continue as to Obligations incurred or
contracted by the Client, or any successor of the Client, prior to such
revocation or death and as to all extensions and renewals thereof, in whole or
in part.
If any payment of the Obligations is made by or for the benefit of the Client
and is repaid by the Company to the Client or any other party pursuant to any
federal, sure or other law, including those relating to bankruptcy, insolvency,
preference or fraudulent transfer, then to the extent of such repayment, the
liability of the liability of the undersigned with respect to such Obligation
shall continue in full force and effect. The undersigned agrees that if the
Company gives to the undersigned written notice of the institution of any action
or proceedings, legal or otherwise between the Company and the Client, the
undersigned shall be conclusively bound by the adjudication in any such legal or
other proceeding, or by any judgment or award decree entered therein.
Until such time as the Obligations have been fully and indefeasibly paid, the
undersigned agrees not to assert any claim or other right which the undersigned
may now have or hereafter acquire against the Client or any other person that is
primarily or contingently liable on any obligation that arises from the
existence or performance of the undersigned's obligations under this guaranty,
including, without limitations any right of subrogation, reimbursement
exoneration, contribution. or indemnification except to the limited extent
necessary to avoid permanently waiving any such claim or right.
The undersigned also waives the right to assert in any action or proceeding upon
this guaranty any defense offsets or counterclaims which the undersigned may
have with respect thereto. This guaranty shall be governed by and construed and
interpreted in accordance with the laws of the State of New York and all actions
and proceedings existing out of or in connection therewith shall be litigated in
the federal or state courts of such State or, at the Company's option, in any
other courts as the Company may select and the undersigned agrees that such
courts are convenient forums and the undersigned submits to the personal
jurisdiction of such courts. This guaranty cannot be altered or discharged
orally. Notice of the acceptance of this guaranty is hereby waived.
THE UNDERSIGNED WAIVES THE RIGHT TO TRIAL BY JURY IN ALL ACTIONS BROUGHT BY OR
AGAINST THE COMPANY.
IN WITNESS WHEREOF, the undersigned has duly executed these presents this 27th
day of July, 2001.
MORGAN GROUP, INC.
By: /s/ Gary J. Klusman
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Title: Executive VP Finance and Administration