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EXHIBIT 10.13
GUARANTY
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This GUARANTY, dated as of August 11, 2000, is by CENTRAL CHECK
CASHING, INC., a California corporation, and CENTRAL CONSUMER COMPANY OF NEVADA,
a Nevada corporation (individually a "Guarantor", collectively "Guarantors"), in
favor of the Lenders (as below defined) and UNION BANK OF CALIFORNIA, N.A., as
agent (in such capacity, the "Agent") for the financial institutions (the
"Lenders") from time to time party to that certain Credit Agreement dated as of
August 11, 2000, among Central Consumer Finance Company, a Delaware corporation
(the "Borrower"), the Lenders and the Agent.
Recitals
A. The Borrower, the Agent, and the Lenders entered into a Credit
Agreement dated as of August 11, 2000. The Credit Agreement as now in effect or
hereafter extended, renewed, modified, supplemented, amended or restated is
hereinafter called the "Credit Agreement".
B. The Lenders are willing to make certain Loans to the Borrower as
provided in the Credit Agreement on the condition (among others) that the
Guarantors enter into this Guaranty.
C. The Guarantors, as Subsidiaries of the Borrower, will derive
substantial and direct benefits (which benefits are hereby acknowledged by the
Guarantors) from the Loans and other benefits to be provided to the Borrower
under the Credit Agreement.
D. In order to induce the Lenders to make such Loans available to the
Borrower as provided in the Credit Agreement, and for other valuable
consideration, the Guarantors issue this Guaranty.
1. Definitions. Unless otherwise defined herein, capitalized terms used
in this Guaranty have the meanings given to them from time to time in the Credit
Agreement. References to the Lenders or any Lender herein shall include the
Agent in its capacity as a Lender. As used herein, "Guaranteed Obligations"
means (a) the "Obligations" as defined in the Credit Agreement and includes all
obligations, liabilities and indebtedness of every kind and character, whether
now existing or hereafter arising, whether absolute or contingent, and whether
direct or indirect, arising directly or indirectly under or pursuant to any one
or more of the Loan Documents, whether for principal, interest (including,
without limitation, interest that, but for the filing of a petition in
bankruptcy, would accrue on such obligations, liabilities or indebtedness), fees
(including, without limitation, reasonable attorneys' fees of outside counsel
and the reasonable allocated fees of internal counsel) or expenses, (b) all
obligations, liabilities and indebtedness of Borrower to Union Bank of
California, N.A. of every kind and character, whether now existing or hereafter
arising, whether absolute or contingent, and whether direct or indirect, arising
directly or indirectly under or pursuant to any and all transactions, agreements
or documents now existing or hereafter entered into, which provides for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging Borrower's exposure to fluctuations in
interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices, whether for principal, interest (including,
without limitation, interest that, but for the
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filing of a petition in bankruptcy, would accrue on such obligations,
liabilities or indebtedness), fees (including, without limitation, reasonable
attorneys' fees of outside counsel and the reasonable allocated fees of internal
counsel) or expenses, and (c) all obligations, liabilities and indebtedness of
Borrower to Union Bank of California, N.A. of every kind and character, whether
now existing or hereafter arising, whether absolute or contingent, and whether
direct or indirect, arising directly or indirectly under or pursuant to any cash
management or related services including the automatic clearing house transfer
of funds by the Bank for the account of Borrower pursuant to agreement or
overdrafts, whether for principal, interest (including, without limitation,
interest that, but for the filing of a petition in bankruptcy, would accrue on
such obligations, liabilities or indebtedness), fees (including, without
limitation, reasonable attorneys' fees of outside counsel and the reasonable
allocated fees of internal counsel) or expenses.
2. Guaranty.
2.1 Guaranty. (a)Each Guarantor hereby, jointly and severally,
irrevocably, absolutely, and unconditionally guarantees the full
and punctual payment or performance when due, whether at stated
maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all of the Guaranteed Obligations,
including (i) Guaranteed Obligations in respect of amounts that
would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code or the operation of
Sections 502(b) and 506(b) of the Bankruptcy Code; and (ii)
Guaranteed Obligations to deliver and pledge cash collateral upon
certain events. This Guaranty constitutes a guaranty of payment
and performance when due and not of collection, and each
Guarantor specifically agrees that it shall not be necessary or
required that the Agent or any Lender exercise any right, assert
any claim or demand or enforce any remedy whatsoever against the
Borrower (or any other Person) before or as a condition to the
obligations of the Guarantors hereunder. The Agent or any Lender
may permit the indebtedness of the Borrower to the Agent or any
Lender to include indebtedness other than the Guaranteed
Obligations, and may apply any amounts received from any source,
other than from the Guarantors, to that portion of Borrower's
indebtedness to the Agent or any Lender which is not a part of
the Guaranteed Obligations.
(b) To secure all of the Guarantors' obligations hereunder, each
Guarantor assigns and grants to Lender a security interest in all
moneys, securities, and other property of such Guarantor now or
hereafter in the possession of Lender, all deposit accounts of
such Guarantor maintained with Lender, and all proceeds thereof.
Upon default or breach of any Guarantor's obligations to Lender,
Lender may apply any deposit account to reduce the indebtedness,
and may foreclose any collateral as provided in the Uniform
Commercial Code and in any security agreements between Lender and
Guarantor.
2.2 Obligations Independent. The obligations hereunder are
independent of the obligations of the Borrower, and a separate
action or actions may be brought and prosecuted against one or
more of the Guarantors whether action is brought against the
Borrower or whether the Borrower or any other guarantor be joined
in any such
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action or actions; and each Guarantor waives the benefit of any
statute of limitations affecting such Guarantor's liability
hereunder.
2.3 Limit of Liability. Notwithstanding anything to the contrary
contained herein:
(a) Each Guarantor shall be liable hereunder only for the largest
amount that would not render such Guarantor's obligations
hereunder subject to avoidance under Section 548 of the
Bankruptcy Code or comparable provisions of any applicable state
law; provided that such amount shall be presumed to be the entire
amount of the Guaranteed Obligations. If, any Guarantor claims
that such Guarantor's liability hereunder is less than the entire
amount of the Guaranteed Obligations, such Guarantor shall have
the burden of proving, by clear and convincing evidence, that
such Guarantor's liability hereunder should be so limited since
the information concerning, and the circumstances of, the
financial condition of such Guarantor are more readily available
to and are under the control of such Guarantor.
(b) All payments received by Agent or any Lender from any Person
other than a Guarantor on account of the Guaranteed Obligations
shall be deemed as having been applied to Guaranteed Obligations
which, pursuant to this Section 2.3, are in excess of the amounts
guaranteed hereunder.
2.4 Authorization of Renewals, Etc. The Guarantors authorize the
Agent and each Lender, without notice or demand and without
affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate or otherwise change the
time for payment, or otherwise change the terms, of the
Guaranteed Obligations or any part thereof, including increase or
decrease of the rate of interest thereon, or otherwise change the
terms of the Credit Agreement or any other Loan Document;
(b) to receive and hold security for the payment of this Guaranty or
the Guaranteed Obligations and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security;
(c) to apply such security and direct the order or manner of sale
thereof as the Agent, or any Lender, as the case may be, in its
or their discretion may determine; and
(d) to release or substitute any one or more of any endorsers or
guarantors of the Guaranteed Obligations.
The Guarantors further agree the performance or occurrence of any of the acts or
events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Borrower, other than the Guaranteed
Obligations, to the Agent or any Lender, shall not affect the liability of the
Guarantors hereunder.
2.5 Waiver of Certain Rights. Each Guarantor waives any right to
require the Agent or any Lender:
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(a) to proceed against the Borrower or any other Person, including
any other Guarantor;
(b) to proceed against or exhaust any security for the Guaranteed
Obligations or any other indebtedness of the Borrower to the
Agent or any Lender; or
(c) to pursue any other remedy in the Agent's or any such Lender's
power whatsoever.
2.6 Waiver of Certain Defenses. (a) Each Guarantor waives any defense
arising by reason of any disability or other defense of the
Borrower, or the cessation from any cause whatsoever of the
liability of the Borrower, whether consensual or arising by
operation of law or any bankruptcy, insolvency or debtor relief
proceeding, or from any other cause, including any such defense
or cessation of liability arising from or as a result of any
claim of fraudulent transfer or preference, or any claim that
such Guarantor's obligations exceed or are more burdensome than
those of the Borrower. Each Guarantor waives any defense arising
by reason of any statute of limitations affecting the liability
of the Borrower. Each Guarantor waives all rights and defenses
arising out of an election of remedies by the Agent or any
Lender, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the
Guaranteed Obligations, has destroyed such Guarantor's rights of
subrogation and reimbursement against the Borrower by operation
of Section 580d of the California Code of Civil Procedure (if
applicable) or other applicable law, and all rights or defenses
such Guarantor may have by reason of protection afforded to the
Borrower with respect to the Guaranteed Obligations pursuant to
the antideficiency laws or other laws of the State of California
(or other applicable jurisdiction) limiting or discharging the
Guaranteed Obligations. Each Guarantor waives any benefit of, and
any right to participate in, any security or other guaranty now
or hereafter held by the Agent or any Lender securing the
Guaranteed Obligations.
(b) Until the indebtedness shall have been paid in full, even though
the indebtedness is in excess of such Guarantor's liability
hereunder, each Guarantor waives any right of subrogation,
reimbursement, indemnification, and contribution (contractual,
statutory, or otherwise) including, without limitation, any claim
or right of subrogation under the Bankruptcy Code (Title 11,
United States Code) or any successor statute, arising from the
existence or performance of this Guaranty, and each Guarantor
waives any right to enforce any remedy which Lender now has or
may hereafter have against Borrower and waives any benefit of and
any right to participate in any security now or hereafter held by
Lender.
(c) Each Guarantor understands and acknowledges that if Lender
forecloses, either by judicial foreclosure or by exercise of
power of sale, any deed of trust securing the indebtedness, that
foreclosure could impair or destroy any ability that such
Guarantor may have to seek reimbursement, contribution, or
indemnification from Borrower or others based on any right such
Guarantor may have of subrogation, reimbursement, contribution,
or indemnification for any amounts paid by such Guarantor under
this Guaranty. Each Guarantor further understands and
acknowledges that in the absence of this paragraph, such
potential impairment or destruction of Guarantor's rights, if
any, may entitle such Guarantor to assert a defense to this
Guaranty based on Section
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580d of the California Code of Civil Procedure as interpreted in
Union Bank v. Gradsky, 265 Cal. App. 2d. 40 (1968). By executing
this Guaranty, each Guarantor freely, irrevocably, and
unconditionally: (i) waives and relinquishes that defense and
agrees that such Guarantor will be fully liable under this
Guaranty even though Lender may foreclose, either by judicial
foreclosure or by exercise of power of sale, any deed of trust
securing the indebtedness; (ii) agrees that such Guarantor will
not assert that defense in any action or proceeding which Lender
may commence to enforce this Guaranty; (iii) acknowledges and
agrees that the rights and defenses waived by such Guarantor in
this Guaranty include any right or defense that such Guarantor
may have or be entitled to assert based upon or arising out of
any one or more of Sections 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure or Section 2848 of the
California Civil Code; and (iv) acknowledges and agrees that
Lender is relying on this waiver in making the Loans and
extending other financial accommodations giving rise to the
obligations, and that this waiver is a material part of the
consideration which Lender is receiving for creating the
Guaranteed Obligations.
(d) Each Guarantor waives any rights and defenses that are or may
become available to it by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code.
(e) Each Guarantor waives all rights and defenses that it may have
because any of the indebtedness is secured by real property. This
means, among other things: (i) Lender may collect from such
Guarantor without first foreclosing on any real or personal
property collateral pledged by Borrower; and (ii) if Lender
forecloses on any real property collateral pledged by Borrower:
(1) the amount of the indebtedness may be reduced only by the
price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price, and (2)
Lender may collect from such Guarantor even if Lender, by
foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from Borrower. This is
an unconditional and irrevocable waiver of any rights and
defenses that any Guarantor may have because any of the
Guaranteed Obligations are secured by real property. These rights
and defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.
(f) Each Guarantor waives any right or defense it may have at law or
equity, including California Code of Civil Procedure Section
580a, to a fair market value hearing or action to determine a
deficiency judgment after a foreclosure.
(g) No provision or waiver in this Guaranty shall be construed as
limiting the generality of any other waiver contained in this
Guaranty.
2.7 Waiver of Presentments, Etc. Each Guarantor waives all
presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor and notices of
acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional Guaranteed Obligations or any other
indebtedness of Borrower to the Agent or any Lender.
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2.8 Information Relating to Borrower. Each Guarantor acknowledges and
agrees that it shall have the sole responsibility for obtaining
from the Borrower such information concerning the Borrower's
financial condition or business operations as such Guarantor may
require, and that neither the Agent nor any Lender has any duty
at any time to disclose to any Guarantor any information relating
to the business operations or financial condition of the
Borrower.
2.9 Right of Setoff. In addition to any rights and remedies of the
Lenders provided by law, if any Guarantor has failed to make any
payment due hereunder upon demand, each Lender is authorized at
any time and from time to time, without prior notice to any
Guarantor, any such notice being waived by the Guarantors to the
fullest extent permitted by law, to set-off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of any
Guarantor against any and all obligations of the Guarantors now
or hereafter existing under this Guaranty or any other Loan
Document, irrespective of whether or not the Agent or such Lender
shall have made demand under this Guaranty or any other Loan
Document and although such obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Guarantors
and the Agent after any such set-off and application made by such
Lender; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights
of each Lender under this Section 2.9 are in addition to the
other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
2.10 Subordination. Any obligations of the Borrower to any Guarantor,
now or hereafter existing, including, but not limited to,
obligations to any Guarantor as subrogee of the Agent or any
Lender or resulting from any Guarantor's performance under this
Guaranty, are hereby fully subordinated in time and priority of
payment to the Guaranteed Obligations and all other indebtedness
of the Borrower to the Agent or any Lender. Such obligations of
the Borrower to any Guarantor if the Lenders so request shall be
enforced and performance received by such Guarantor as trustee
for the Agent and the Lenders and the proceeds thereof shall be
paid over to the Agent and the Lenders on account of the
Guaranteed Obligations, but without reducing or affecting in any
manner the liability of any Guarantor under the other provisions
of this Guaranty.
2.11 Reinstatement of Guaranty. If any payment or transfer of any
interest in property by the Borrower to the Agent or any Lender
in fulfillment of any Guaranteed Obligation is rescinded or must
at any time (including after the return or cancellation of this
Guaranty) be returned, in whole or in part, by the Agent or any
Lender to the Borrower or any other Person, upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, this
Guaranty shall be reinstated with respect to any such payment or
transfer, regardless of any such prior return or cancellation.
2.12 Powers. (a) It is not necessary for the Agent or any Lender to
inquire into the powers of the Borrower or of the officers,
directors, partners or agents acting or
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purporting to act on its behalf, and any Guaranteed Obligations
made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
(b) Each Guarantor authorizes Lender to verify or check any
information given by such Guarantor to Lender, check Guarantor's
credit references, verify employment, and obtain credit reports.
2.13 Taxes. (a) Any and all payments by the Guarantors to each Lender
or the Agent under this Guaranty shall be made free and clear of,
and without deduction or withholding for, any Taxes. In addition,
the Guarantors shall pay all Other Taxes.
(b) If the Guarantors shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any
sum payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable
under this Section), such Lender or the Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been
made;
(ii) the Guarantors shall make such deductions and withholdings;
(iii) the Guarantors shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Guarantors shall also pay to each Lender or the Agent for the
account of such Lender at the time interest is paid, Further
Taxes in the amount that the respective Lender specifies as
necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or Further Taxes had not been
imposed.
(c) The Guarantors agree to indemnify and hold harmless each Lender
and the Agent for the full amount of (i) Taxes, (ii) Other Taxes,
and (iii) Further Taxes in the amount that the respective Lender
specifies as necessary to preserve the after-tax yield the Lender
would have received if such Taxes, Other Taxes or Further Taxes
had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted. Payment under
this indemnification shall be made within 30 days after the date
the Lender or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the Guarantors of
Taxes, Other Taxes or Further Taxes, the Guarantors shall furnish
to each Lender or the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Lender or the Agent.
(e) For purposes of this Section, (i) "Taxes" means any and all
present or future taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges,
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and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, respectively, taxes imposed on or
measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the
Agent, as the case may be, is organized or maintains a lending
office; (ii) "Other Taxes" means any present or future stamp,
court or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to,
this Guaranty; and (iii) "Further Taxes" means any and all
present or future taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges (including,
without limitation, net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction
on account of amounts payable or paid pursuant to this Section.
2.14 Waiver of Subrogation. Until the Guaranteed Obligations have been
indefeasibly paid in full, each Guarantor waives any right of
subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or
right of subrogation under the Bankruptcy Code or any successor
statute, against the Borrower arising from the existence or
performance of this Guaranty and each Guarantor waives any right
to enforce any remedy which the Agent or any Lender now has or
may hereafter have against the Borrower, and waives any benefit
of, and any right to participate in, any security now or
hereafter held by the Agent or any Lender secured the Guaranteed
Obligations.
3. Representations and Warranties. Each Guarantor represents and
warrants to the Agent and each Lender as follows:
3.1 Corporate Existence and Power. Such Guarantor (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of their incorporation; (b)
has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry
on their businesses and to execute, deliver, and perform its
obligations under, this Guaranty and any other Loan Document to
which they are a party; (c) is duly qualified as a foreign
corporation, and licensed and in good standing, under the laws of
each jurisdiction where its ownership, lease or operation of
property or the conduct of their business requires such
qualification or license; and (d) is in compliance with all
Requirements of Law.
3.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by such Guarantor of this Guaranty and
any other Loan Document to which it is party, have been duly
authorized by all necessary corporate action, and do not and will
not (a) contravene the terms of such Guarantor's Organization
Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any lien under, any document
evidencing any contractual obligation to which such Guarantor is
a party or any order, injunction, writ or decree of any
Governmental Authority to which such Guarantor or its property
are subject; or (c) violate any Requirement of Law.
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3.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with,
any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement
against, such Guarantor of this Guaranty or any other Loan
Document to which it is a party.
3.4 Binding Effect. This Guaranty and each other Loan Document to
which such Guarantor is a party constitute the legal, valid and
binding obligations of such Guarantor, enforceable against such
Guarantor in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
3.5 Regulated Entities. Such Guarantor, any Person controlling any
Guarantor or any Subsidiary of any Guarantor is not (a) an
"Investment Borrower" within the meaning of the Investment
Borrower Act of 1940; or (b) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation
limiting its ability to incur or guarantee indebtedness.
4. Miscellaneous
4.1 Application of Payments on Guaranty. All payments required to be
made by the Guarantors hereunder shall, unless otherwise
expressly provided herein, be made to the Agent for the account
of the Lenders at the Agent's Payment Office. The Agent will
promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in
like funds as received. Payments received from the Guarantors
shall, unless otherwise expressly provided herein, be applied to
costs, fees, or other expenses due under the Loan Documents, any
interest (including interest due under subsection 2.07 of the
Credit Agreement, any principal due under the Loan Documents and
any other Guaranteed Obligations, in such order as the Agent,
with the consent of or at the request of the Lenders, shall
determine.
4.2 Assignments, Participations, Confidentiality. Any Lender may from
time to time, without notice to the Guarantors and without
affecting any Guarantor's obligations hereunder, transfer its
interest in the Guaranteed Obligations to Participants and
Assignees as provided in the Credit Agreement. The Guarantors
agree that each such transfer will give rise to a direct
obligation of the Guarantors to each such Participant and
Assignee and that each such Participant and Assignee shall have
the same rights and benefits under this Guaranty as it would have
if it were a Lender party to the Credit Agreement and this
Guaranty. Each Guarantor agrees that a Lender may disclose to any
assignee or purchaser, or any prospective assignee or purchaser,
of all or part of the Guaranteed Obligations, any and all
information in such Lender's possession concerning such
Guarantor, this Guaranty, and any security for this Guaranty. The
Guarantors, the Agent and each Lender agree that the provisions
of Section 10.17 of the Credit Agreement shall apply to all
information identified as "confidential" or "secret" by the
Guarantors and provided to the Agent or such
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Lender by the Guarantors or any Subsidiary of any Guarantor under
this Guaranty or any other Loan Document to which the Guarantors
are a party.
4.3 Loan Document. This Guaranty is a Loan Document executed and
delivered pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof.
Without limiting the generality of the foregoing, the provisions
of Sections 1.02 and 1.03 of the Credit Agreement shall apply to
the interpretation and administration of this Guaranty as if such
provisions were incorporated herein, with all references to the
"Agreement" in such Sections being deemed to be references to
this Guaranty.
4.4 Addition of Guarantors. Any Person which executes and delivers to
the Agent a joinder letter in the form attached hereto as
"Exhibit 1" shall, without further action on the part of any
Person, automatically become a party hereto as a Guarantor with
respect to the repayment and performance of the Guaranteed
Obligations and shall be fully obligated as a Guarantor
hereunder.
4.5 Waivers; Writing Required. No delay or omission by the Agent or
any Lender to exercise any right under this Guaranty shall impair
any such right, nor shall it be construed to be a waiver thereof.
No waiver of any single breach or default under this Guaranty
shall be deemed a waiver of any other breach or default. Any
amendment or waiver of any provision of this Guaranty must be in
writing and signed by the Guarantors and the Agent, with the
written consent of all of the Lenders, in accordance with the
terms of Section 10.01 of the Credit Agreement.
4.6 Remedies. All rights and remedies provided in this Guaranty and
any instrument or agreement referred to herein are cumulative and
are not exclusive of any rights or remedies otherwise provided by
law. Any single or partial exercise of any right or remedy shall
not preclude the further exercise thereof or the exercise of any
other right or remedy.
4.7 Costs and Expenses. The Guarantors, jointly and severally, agree
to pay or reimburse the Agent and each Lender within five
Business Days after demand for all costs and expenses, including
Attorney Costs (including allocated costs of Lender's in-house
counsel) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies
under this Guaranty (including in connection with any "workout"
or restructuring regarding amounts due under this Guaranty, and
including in any Insolvency Proceeding or appellate proceeding).
4.8 Severability. The illegality or unenforceability of any provision
of this Guaranty or any instrument or agreement referred to
herein shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Guaranty or
any instrument or agreement referred to herein.
4.9 Revocation. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives any right to revoke this Guaranty
as to future Guaranteed Obligations and, in
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light thereof, all protection afforded such Guarantor under
Section 2815 of the California Civil Code. Each Guarantor fully
realizes and understands that, upon execution of this agreement,
such Guarantor will not have any right to revoke this Guaranty as
to any future Guaranteed Obligations and, thus, may have no
control over such Guarantor's ultimate responsibility for the
Guaranteed Obligations. If, contrary to the express intent of
this agreement, any such revocation is effective notwithstanding
the foregoing waiver, Guarantors acknowledge and agree that: (a)
no such revocation shall be effective until written notice
thereof has been received by Lenders and Agent; (b) no such
revocation shall apply to any Guaranteed Obligations in existence
on such date (including any subsequent continuation, extension,
or renewal thereof, or change in the interest rate, payment
terms, or other terms and conditions thereof); (c) no such
revocation shall apply to any Guaranteed Obligations made or
created after such date to the extent made or created pursuant to
a legally binding commitment of Lenders and Agent which is, or is
believed in good faith by Lenders and Agent to be, in existence
on the date of such revocation; (d) no payment by any other
Guarantor or Borrower, or from any other source, prior to the
date of such revocation shall reduce the obligations of such
Guarantor hereunder; and (e) any payment by Borrower or from any
source other than such Guarantor, subsequent to the date of such
revocation, shall first be applied to that portion of the
obligations, if any, as to which the revocation by such Guarantor
is effective (and which are not, therefore, guarantied by such
Guarantor hereunder), and, to the extent so applied, shall not
reduce the obligations of such Guarantor hereunder.
4.10 Notices. All notices or demands by any Guarantor or Agent or
Lenders to the other relating to this Guaranty shall be in
writing and either personally served or sent by registered or
certified mail, postage prepaid, return receipt requested, or by
prepaid telex, telefacsimile, or telegram, and shall be deemed to
be given for purposes of this Guaranty on the day that such
writing is received by the party to whom it is sent. Unless
otherwise specified in a notice sent or delivered in accordance
with the provisions of this clause such writing shall be sent to
such Guarantor, Agent or Lenders, as applicable, at its address
for notices set forth on the signature page hereof or as may
otherwise be specified from time to time in a writing sent by one
party to the other in accordance with the provisions of this
Section.
4.11 WAIVER OF JURY TRIAL. GUARANTORS, LENDERS, AND AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. GUARANTORS, LENDERS,
AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY
13
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS.
4.12 GOVERNING LAW. THIS AGREEMENT, AND THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF
GUARANTOR AND LENDERS AND AGENT HERETO AND HEREUNDER SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
4.13 JURISDICTION AND VENUE. EACH GUARANTOR AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE
TRIED AND LITIGATED IN THE COURTS OF THE STATE OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN OR CENTRAL
DISTRICTS OF CALIFORNIA. EACH GUARANTOR STIPULATES THAT THE STATE
AND FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF SAN
FRANCISCO OR THE CITY OF LOS ANGELES, STATE OF CALIFORNIA SHALL
HAVE IN PERSONAM JURISDICTION AND VENUE OVER GUARANTORS FOR
PURPOSES OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF
THE OTHER CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR
PERSONAL JURISDICTION IN ANY ACTION AGAINST ANY GUARANTOR MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
TO SUCH GUARANTOR'S ADDRESS FOR NOTICES SPECIFIED IN ACCORDANCE
WITH THE TERMS HEREOF. EACH GUARANTOR AGREES THAT ANY FINAL
JUDGMENT RENDERED AGAINST SUCH GUARANTOR IN ANY ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AS TO THE SUBJECT OF SUCH FINAL
JUDGMENT AND MAY BE ENFORCED IN OTHER JURISDICTIONS IN ANY MANNER
PROVIDED BY LAW. EACH GUARANTOR ABSOLUTELY, UNCONDITIONALLY,
KNOWINGLY, AND EXPRESSLY WAIVES ANY RIGHT SUCH GUARANTOR MAY HAVE
TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO
VENUE TO THE EXTENT ANY ACTION OR PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION.
4.14 Entire Agreement. This Guaranty (a) integrates all the terms and
conditions mentioned herein or incidental hereto, (b) supersedes
all oral negotiations and prior writings with respect to the
subject matter hereof, and (c) is intended by the parties as the
final expression of the agreement with respect to the terms and
conditions set
14
forth in this Guaranty and any such instrument, agreement and
document and as the complete and exclusive statement of the terms
agreed to by the parties.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its
duly authorized officers as of the day and year first above written.
CENTRAL CHECK CASHING, INC.,
a California corporation
By: /S/
----------------------------------------
Name: Howard Weitzman
Title: Chief Financial Officer
Notice Information:
Attn: Gary Cypres
5480 East Ferguson Drive
Commerce, CA 90022
Tel: 323.720.8724
Fax: 323.720.5242
15
CENTRAL CONSUMER COMPANY OF NEVADA,
a Nevada corporation
By: /S/
----------------------------------------
Name: Howard Weitzman
Title: Chief Financial Officer
Notice Information:
Attn: Gary Cypres
5480 East Ferguson Drive
Commerce, CA 90022
Tel: 323.720.8724
Fax: 323.720.5242
Notice Information for
Agent and Lenders:
Union Bank of California, N.A., as Agent
Attn: Robert C. Nagel
350 California Street, 6th Floor
San Francisco, CA 94104
Tel: 415.705.7189
Fax: 415.705.7037
16
EXHIBIT 1
[Guarantor Joinder Letter]
_______________, ____
To the Agent
Referenced below:
Re: Central Consumer Finance Company
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
11, 2000 (as amended, the "Credit Agreement"), among Central Consumer Finance
Company, a Delaware corporation ("Borrower"), certain financial institutions
party thereto (the "Lenders"), and Union Bank of California, N.A., as agent for
the Lenders (in such capacity the "Agent"). Unless specifically defined herein,
capitalized terms used herein have the meaning set forth in the Credit
Agreement.
The undersigned hereby confirms and agrees that (a) it has been
furnished with a copy of and has read the Credit Agreement, the Schedules and
Exhibits thereto, the Guaranty, and the other Loan Documents and understands the
effect thereof, and (b) effective as of the date hereof, the undersigned is
obligated as, assumes all obligations of, a Guarantor under the Guaranty. The
undersigned hereby warrants and represents to you that the representations,
warranties, undertakings, and waivers of the undersigned as a Guarantor under
the Guaranty, are true, correct, complete, and effective as to the undersigned.
Very truly yours,
[NAME OF GUARANTOR],
a [_________________]
By _________________________________
Name: ______________________________
Title: _____________________________
Notice Information.